Judith Armatta

Judith Armatta is a lawyer, journalist and human rights activist

RATKO MLADIC GUILTY OF GENOCIDE: WHY AREN'T BOSNIAKS OVERJOYED?

“The crimes committed rank among the most heinous known to humankind and include genocide and extermination as a crime against humanity.” ICTY Trial Chamber on sentencing Ratko Mladic to life in prison.

General Ratko Mladic, commander of the Bosnian Serb Army, was convicted of 10 counts of war crimes, crime against humanity, and genocide by the International Criminal Tribunal for the Former Yugoslavia (ICTY) on November 22, 2017, and sentenced to life in prison. Why aren’t all Bosniaks (Bosnian Muslims) overjoyed?

They aren’t unhappy that he was convicted of those crimes. They’re distressed that he was not convicted of genocide for the Bosnian Serb campaign to drive out non-Serbs from over 40 municipalities at the beginning of the war in 1992 (the prosecution charged him with genocide in six of those municipalities). No one has been. The 22 years from indictment to conviction is also not a cause for rejoicing. Nor is impunity for the 1000s of hands on perpetrators.

The ICTY Trial Chamber found that the VRS had committed mass executions, forcible transfer and deportation, brutal rapes of women and children as young as 12, detention and near starvation in camps. Two of the three judges (Judge Orie dissenting) found that the physical perpetrators in five municipalities “intended to destroy the Bosnian Muslims in those Municipalities as part of the protected group,” a necessary finding for genocide. But they concluded it was not genocide because those murdered were not a “substantial part” of the protected group, another requirement for a finding of genocide.

While agreeing with the prosecution that four “joint criminal enterprises (JCE) existed,”* the Trial Chamber decided that the evidence did not support a finding that the purpose of the “Overarching JCE” included the commission of genocide in the Municipalities. That let Mladic off the hook for genocide in the Municipalities. He was, however, found guilty of genocide for the Srebrenica JCE that resulted in the murder of 8,000 men and boys and the forcible expulsion of all non-Serbs from that region.

Some of the incidents that led two judges to conclude that physical perpetrators intended to commit genocide in the Municipalities were:

• In Sanski Most, Bosnian Serb forces forced 28 Bosnian Muslim men to jump off the Vrhpolj Bridge one by one, then shot them in the water. Only one survived. Four other men were killed on the way to the bridge.

• Twenty-four Bosnian Muslim detainees suffocated while being transported to the Manjaca Camp detention center, after being forced to consume salt and denied water for the nine hour trip.

• At the Keraterm Camp, chemical gas was thrown into a room, causing detainees to panic and try to get out. As they exited, the guards and soldiers executed them with automatic weapons. Between 190 and 220 were killed.

• In detention camps, “[D]etainees were forced to rape and engage in other degrading sexual acts with one another. . . .”

• Many Bosnian women were raped. At “Karaman’s House in Foca Municipality, several groups of women, and girls as young as 12 years old, were routinely and brutally raped.”**

It has been estimated that from 3,000 to 6,000 people were killed or disappeared in the Prijedor region alone (including at the infamous concentration camps at Trnopolje, Omarska, and Keraterm). In 1992, the first year of the war in Bosnia, 45,000 people were killed, nearly half of the total killed (100,000) during the entire war. Bosnian Serb forces raped anywhere from 20,000 to 50,000 Bosnian Muslim women throughout Bosnia-Herzegovina. Evidence of all those murders and rapes could not be presented in one trial, which lasted four years as it was. Though the Chamber found that the murderers and rapists in each of these municipalities had an intent to destroy a part of the protected group of Bosnian Muslims, they didn’t combine the numbers, thereby creating a silo effect. The killing of 24 men with intent to destroy the Bosnian Muslims as a group was not a substantial part of the entire community of Bosnian Muslims living within territory claimed by the Bosnian Serbs. Therefore, the Trial Chamber held, Mladic, the commander of Serb forces in Bosnia-Herzegovina, could not be held responsible for genocide in the municipalities.

Right or wrong, this is a legal argument. It does nothing to assuage the grief of those who lost their families when the Bosnian Serbs forced forty of them into a house, locked the doors, and burned it down. As the screams subsided and the flames died, the killers passed around a bottle of plum brandy. Nor is it a comfort to Fikret Bacic who lost his daughter, son, wife, mother, and 14 other relatives when Serb forces ordered them out of the house where they, with 26 other women and children, had sought safety, killing all but one young boy.

Moreover, tens of thousands of Bosnian Serbs who shot the guns, locked the doors, lit the match, and shared the plum brandy were never held to account. They live ordinary lives in the cafes and streets of Sanski Most, Prijedor, Koto Varos, Foca, Kljuc, Vlasenica, Bratunac, Zvornik. . . . The Bosnian Muslims who returned to those areas see them daily. A woman turns from her table in the café and sees her rapist, casually drinking coffee or rakija. He looks through her or gives a haughty smirk. An elderly man walks slowly through the square, where a group of adolescents are hanging out, laughing, enjoying the sun and free time. Quite possibly, they are children of the men who murdered his children, when they were the same age or younger.

Journalist, Janine di Giovanni, who reported on the war, wrote in a New York Times Op Ed after the Mladic verdict:

“As I saw firsthand, the men who did the truly nefarious acts — those who pulled the triggers on women and children, who dug the mass graves in Srebrenica, who took part in the mass rapes in Foca and other towns in Bosnia — walked free. Those men, to me, were the truly evil ones.

"Many years after the war, in Srebrenica, I met a broken woman who had been held in the notorious Foca gymnasium as a teenager and raped dozens of times. Justice for her was a laughable illusion. She told me that she saw one of her rapists every day in the village that they both came from. She knew he would never go to The Hague and face justice: Very few men were tried there for rape.

“It was she, the victim, who dropped her eyes in shame when they passed each other on the street, and he, the rapist, who walked by triumphantly. This was not a rare occurrence. I interviewed mothers and daughters who were raped side by side and still saw their rapists in the towns they had returned to after the war.” fn. 1

Bosniak Poet, Darko Cvejetic gives voice to this reality:

“I am trying to capture it in a poem, this coexistence of the killer and the victim, this relationship, this situation which is now escaping rational analysis. I have seen things, where people as harmless as bunnies become military commanders, and who after they stop being commanders go back to “normal,” to being bunnies again.” 

For an insightful and beautifully written account of Prijedor then and now, see Refik Hodzic’s ““Flowers in the Square. A Struggle for Justice in a Bosnian Community Whose Significance Resonates Far Beyond the Balkans,” from which this quote was taken. http://www.ictj.org/sites/default/files/subsites/flowers-square-prijedor/

Justice was done in part by convicting Ratko Mladic, the man who commanded the forces who carried out the atrocities and murders. It felt too late for some (22 years after the end of the war in Bosnia and more than six and a half years after Mladic’s arrest). Hasan Nuhanovic, a Bosnian survivor of the Srebrenica massacre, told The New York Times after the verdict: “This should all have been behind us by now. The only thing that is behind us is that war.” Even with Mladic’s life sentence, it can never be enough for those who lost everything, their worlds turned upside down, changed forever. But without a conviction, the Tribunal would have ended in infamy. For all its shortcomings in its near-quarter century existence, it brought a measure of justice to some and provided a beacon for the permanent International Criminal Court to follow.

As the writer Srdjan Garcevic, concluded:

Even if ICTY has not managed to punish all those who contributed (and still contribute) to this shame, at least it brought some solace to those who lost too much, and gave us a touchstone from which we can begin to understand the bloody depths of our common embarrassment.”

Most disturbing, nationalism continues to hold sway in Serbia and Republika Srpska,*** where Mladic is hailed as a hero and martyr and the governments refuse to acknowledge that genocide occurred in Srebrenica, let alone in the Municipalities, let alone that Serb forces were responsible. In Republika Srpska, Bosnian Muslim and Serb children are segregated and taught different versions of history in school. And Vojislav Seselj, commander of paramilitary forces in Bosnia who was acquitted by the Tribunal in an inexplicable and outrageous decision (it is on appeal), is currently a member of Parliament in Serbia. General Vladimir Lazarevic, convicted of crimes against humanity, now teaches at Serbia’s top military academy. As Lydia Gall of Human Rights Watch warns:

“Unless governments in the Western Balkans, and their EU and US partners redouble their efforts to bring those responsible for wartime crimes to justice and make a commitment to establish an independent commission to unravel the truth about the region’s bloody past, there is a danger that history will repeat itself.

“Without these combined efforts, it’s not hard to imagine a future in which resurgent populist nationalism in the region and heightened tensions could spill into violence.”

What Refik Hodzic writes about Prijedor is true for all the former Yugoslavia:

“For Prijedor has a chance to be a community where humanity will be a value above the myths about ethnic superiority, inferiority of “others,” celebration of crimes and discrimination, only if it faces the truth about the crimes that changed it so. . . . But it is important that the reckoning with the past is honest and thorough, and that the outcomes of this reckoning are built into the history of Prijedor in a manner accessible to its present and future inhabitants.”

Leaders and politicians in Serbia and the Republika Srpska provide the nationalist rhetoric that prevents healing, just as they led the peoples of the former Yugoslavia, neighbors and friends, to hate and kill one another. If anything, their disinformation has intensified: "[The] time of shame is over and the time of quiet pride has begun." [Ana Brnabic, Serbian Prime Minister]’; "We were told for too long to be ashamed of our war heroes [convicted of war crimes, but no longer." [Aleksandar Vulin, Minister of Defense].

Srdjan Garcevic provided a hopeful response to the Mladic verdict:

“While too few people still know about the amount of suffering heaped on those from other nations, and still too often wave criticisms away with whataboutism, all around the region an enormous number of people are connected by a strong underlying feeling that the wars in 1990s were a shameful mistake that left us all poorer and more miserable, especially given all the sacrifices we had to make.”

The question for the people is how to hear each other over the duplicity of their leaders. “As long as we keep telling stories to shield ourselves from accepting how deeply embarrassing and futile our wars were, we will still not see the shame nor humanity in each other, and reconciliation will stay on the horizon, as opposed to an achievable goal.” fn. 2

 

*A Joint Criminal Enterprise is, in simplified terms, a method of holding an individual accountable when he/she shares a common criminal purpose with others and at least one of them takes action to carry it out. Each JCE member is held responsible for the crime.

**Rape was used as a weapon of war, intending to force Bosnian Muslim women to birth Serb babies.

***The Dayton Accords that ended the fighting in Bosnia-Herzegovina in 1995 divided that country into two entities: the Federation of Bosnia-Herzegovina (consisting of Bosnian Muslims and Croats) and Republika Srpska (consisting of Bosnian Serbs), thus giving the aggressor Bosnian Serbs the spoils of war in exchange for a cease fire.

fn. 1: Janine di Giovanni, “Flawed Justice for the Butcher of Bosnia,” New York Times Opinion, November 22, 2017. https://www.nytimes.com/2017/11/22/opinion/mladic-hague-bosnia-butcher.html

fn. 2: “Confronting the Shame of Nationalism After Mladic Verdict,” December 7, 2017. http://www.balkaninsight.com/en/blog/confronting-the-shame-of-nationalism-after-mladic-verdict-12-04-2017

 

REMEMBERING A MASSACRE: Ethnic Cleansing Then and Now

An excellent archival project by SENSE-Tribunal of the Kosova War and the war crimes prosecutions that followed * added to my anxiety over the current racism and xenophobia in the U.S., led and fostered by President Donald Trump.

In 1999, ten thousand (10,000) people, mostly Kosovar Albanians, were killed and 800,000 forced to flee across borders solely because of their ethnicity and Slobodan Milosevic’s desire for an ethnically pure Serb republic. More than hatred of Bosnian Muslims, Serbs had been taught to hate Albanians who lived in Kosovo, which they consider the heartland of Serb civilization. Milosevic used historical animosity to gain power. Only after fomenting war in Croatia and Bosnia and failing to achieve a Greater Serbia did he return to Kosova to maintain his shaky hold on power. Some people in Serbia objected, but not enough. Most were raised to see Kosovar Albanians as “other.” Segregation assured prejudices remained firmly in place. Though Serbs were tired of war, few objected to the discrimination and brutality against Kosovars leading up to another one.

I was living in the Balkans during the Kosova War, evacuated from Montenegro to Macedonia, where I headed a War Crimes Documentation Project among refugees that would provide evidence to the International Criminal Tribunal for the Former Yugoslavia, where I would spend three years monitoring Milosevic’s war crimes trial. I was in Serbia as brutality against Kosovar Albanians increased daily aided by xenophobic rhetoric. Watching the SENSE videos brought back the gut-wrenching fear for this population, some of whom were my friends. And the terrible anguish over the beatings, torture, murders, and destruction of their homes and livelihoods. I was reminded of Shyrete Berisha and her children, who Serbian forces herded into a pizzeria with 40 or 50 others after killing their men in front of them. For 20 or 30 minutes, police and paramilitaries shot automatic weapons into the café, then tossed in grenades to finish the killing. Shyrete Berisha testified at Milosevic’s trial about losing her entire family:

“I cannot remember any explosion but I turned to look at my children. I saw my son Redon was sitting there with blood all over him and he was still holding his bottle of milk. I saw Majlinda and half her head was missing. I saw Sebahate and half her head was missing as well. I only remember hearing Majlinda and Sebahate once say, “Oof.” I slowly touched my youngest son Redon with my feet but he was dead.”

Mrs. Berisha’s was only one of the stories I heard and which the SENSE project unearthed from the deep place in my psyche where they reside, enabling my day-to-day life of grocery shopping, writing, and enjoying coffee with friends. And now, I hear someone close to me repeat Trump’s and Jeff Sessions’ lies about the criminality of immigrants and the threat they present to “our” (read “white”) children. A waking nightmare. Will we ever wake up? Will we wake up in time to prevent a Kosovo in America? If the spread of xenophobia is any indication, it has already begun. *(http://sense-agency.com/icty/interactive-narrative-%E2%80%9Cicty-the-kosovo-case-presented-to-the-public.29.html?news_id=17229&cat_id=1)

Prosecution Will Appeal Seselj Judgment

Good news, folks, though not unexpected! I mean, what would you do??? The Office of the Prosecutor at the ICTY (now MICT) has announced that they will appeal the Seselj judgment. To do otherwise would be shameful. Here’s the OTP announcement:

Note: the ICTY is now called the Mechanism for International Criminal Tribunals. See below.



United Nations - Mechanism for International Criminal Tribunals

PRESS RELEASE

PROSECUTOR

(Exclusively for the use of the media. Not an official document.)

 



Statement by MICT Prosecutor Serge Brammertz Regarding Appeal of the Vojislav Šešelj Trial Judgement

The Hague, 6 April - After reviewing the written reasons given by the Trial Chamber Majority for acquitting Vojislav Šešelj of all charges, my Office has decided to appeal the Judgement. Given the far reaching nature of the errors we have identified in the Majority Judgement, we underscore for the victims of the crimes that the forthcoming appeal is of utmost priority for this Office.

As we will explain in more detail in our forthcoming notice of appeal, we consider there has been a fundamental failure by the Majority to perform its judicial function. The Majority has omitted to properly adjudicate core aspects of the Prosecution’s case, including by: failing to consider large parts of the evidentiary record; failing to provide proper reasons for its conclusions; failing to properly apply the ‘beyond reasonable doubt’ standard; failing to consider the charges against Vojislav Šešelj in light of the pervasive pattern of crimes proved; failing to distinguish between the ultimate political objective pursued by the joint criminal enterprise members and the criminal means employed to achieve it; making unreasonable and conflicting factual findings; and failing to properly apply the elements of modes of liability such as joint criminal enterprise and aiding and abetting in accordance with established case-law. 

At the same time, we consider that the Majority unreasonably allowed for the possibility that criminal conduct was simply a lawful contribution to the war effort, despite the overwhelming body of evidence pointing against it. In our view, this led the Majority to unreasonably credit the possibility that: expelling civilians was a humanitarian gesture; that incendiary hate speech was simply morale boosting for the Serb forces; and that the deployment of ethnic cleansing forces was a measure to protect the Serb population. In sweeping disregard of the large number of crimes proved at trial the Majority concluded that there was no widespread or systematic attack against the civilian population in parts of Croatia and Bosnia and Herzegovina as required for crimes against humanity. 

As with all appeals filed by my Office, we will exert maximum effort to ensure that our appeal in the Vojislav Šešelj case is litigated efficiently, effectively and fairly in accordance with the prescribed appeals process of the Mechanism for International Criminal Tribunals. 



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The Mechanism for International Criminal Tribunals (MICT) was established by UN Security Council Resolution 1966 (2010) to complete the remaining work of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia after the completion of their respective mandates. The MICT has two branches, one in Arusha, Tanzania, and one in The Hague, Netherlands.

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www.unmict.org

 

 

I Weep for International Justice

Stalin’s judges couldn’t have done a better job. On March 31, 2016, a trial chamber of the ICTY acquitted paramilitary leader Vojislav Seselj of all charges. In doing so, they ignored and thereby undermined the entire jurisprudence of the ICTY over the last two decades. They also ignored the facts long established in other cases. As Judge Flavia Lattanzi stated in her scathing dissent: “[T]he majority sets aside all the rules of international humanitarian law that existed before the creation of the Tribunal and all the applicable law established since the inception of the Tribunal in order to acquit Vojislav Šešelj.” And, as Jelena Subotic wrote for Balkan Insight: “The embarrassment is in the rewriting of the history of the Yugoslav breakup in a manner that is not only outside all major scholarly consensus, but also in direct contradiction with what the ICTY itself has concluded in its previous cases.”

The Vojvoda (duke), so annointed by his Serbian Chetnik movement, led the Serbian Radical Party and was a chief propagandists for ethnic cleansing of Bosnian Muslims and Croats from territories in the former Yugoslavia in pursuit of a Greater Serbia. He formed his own paramilitary group early in the wars. Called Chetniks, the White Eagles, or Seseljevci (Seselj’s men) they were recruited from the dregs of society. Urged on by Seselj’s dehumanization of Croats (comparing them to “primates” and “vampires”) and Bosniaks (“balija” or “pogani” which he translated as excrement), they were implicated in a number of massacres, including at Ovcara following the siege of Vukovar, where hospital patients as well as prisoners of war were rounded up and executed.

Judges Antonetti and Niang concluded that the prosecution did not establish the existence of “a widespread and systematic attack against the non-Serb civilian population in large areas of Croatia and BiH [Bosnia and Herzegovina] . . . .” Instead, the judges held “that there was an armed conflict between enemy military forces with civilian components.” In other words, it was a legitimate war caused by the unlawful secession of Croatia and BiH. Under this interpretation, the displacement and deaths of thousands of civilians were collateral consequences, certainly not the main focus of forces seeking to establish a Greater Serbia. That Serb forces provided buses to take non-Serb civilians away from territories intended for Serbs alone was a humanitarian gesture to help them “voluntarily” leave combat zones. No matter that only non-Serbs were accommodated. It could not be considered ethnic cleansing, according to the two judges in the majority.

Astonishingly, the court felt comfortable in reaching this conclusion despite the fact that every other relevant decision since the ICTY’s inception, including the Karadzic judgment last week, recognized the existence of widespread and systematic attacks against non-Serb civilians in Croatia and Bosnia-Herzegovina. The Karadzic trial chamber, as others have before, found that planned attacks against this civilian population were part of a joint criminal enterprise that included Seselj. For judges Antonetti and Niang, it might just as well have been a poker party.

I weep for the (invisible to the court) victims of the Greater Serbian project who have found little justice from the first international criminal tribunal since WWII. I weep for the ICTY, established with such hope – to end the 20th Century Balkan wars and reconcile the peoples who once lived in a country admired for its multi-ethnicity. I weep for international justice. With this decision and the turn taken by the Appeals Chamber in 2009 away from superior and command responsibility, lady justice (whose statue adorns the grand staircase of the International Court of Justice in The Hague) lies bleeding from her wounds. Can the permanent International Criminal Court bind them up to keep hope alive? Is there any chance at all that an appeal of the Seselj judgment would be successful and not do further damage to the Tribunal, international justice, and, most of all, the victims and survivors of these terrible wars?

http://www.sense-agency.com/icty/judgment-miscarried.29.html?news_id=16997

http://www.balkaninsight.com/en/article/how-seselj-s-verdict-got-history-terribly-wrong-04-01-2016

http://www.icty.org/x/cases/seselj/tjug/en/160331_judgement_summary.pdf

http://www.icty.org/en/press/information-on-the-partially-dissenting-opinion-of-judge-lattanzi-in-judgement-in-the-case-of