By: Richard A. Goldstone, Former Justice, Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor Monitor
On March 25, 2016 a trial chamber of the United
National Criminal Tribunal for the former Yugoslavia (ICTY) convicted Radovan
Karadzic on 10 of the 11 counts on which he was indicted. The convictions
included genocide, murder, persecution, taking hostages and a host of other
crimes against humanity. He was sentenced to imprisonment for 40 years. Not
surprisingly he has lodged an appeal.
Karadzic was the President of the Bosnian Serb
enclave of Bosnia and Herzegovina (Bosnia). He and his army chief, Ratko
Mladic, were initially supported and weaponized by the Serbian military under
the leadership of Slobodan Milosevic. Mladic is currently also on trial in the
ICTY. They were jointly responsible for the ethnic cleansing of large numbers
of Muslims who lived in Bosnia.
In July 1995, I issued the first of two
indictments against Karadzic and Mladic for war crimes committed during the war
that since 1991 had been raging in Bosnia. Then, in November 1995, I issued a
second indictment against Karadzic and Mladic charging them with genocide for
the perpetration in July 1995 of the massacre of almost 8000 Bosnian men and
boys outside the town of Srebrenica. Warrants for their arrest were issued by
the ICTY judges.
It is not disputed that the UN forces then
operating in Bosnia were able to arrest both Karadzic and Mladic. That they did
not do so can be ascribed to the refusal of the military of the US, the UK and
France to become involved in what they referred to as “mission creep”. Their
stance was that the arrest of alleged criminals was not the work of the
military but rather of the police. They also feared that the arrest of these
two men who were regarded as heroes in their own community would have courted
reprisals and generally additional dangers for their troops. The two were
allowed to roam unhindered in plain sight of both their victims and the UN
soldiers sent to maintain peace in the region.
Soon after the end of hostilities in Bosnia at the
end of 1995, Karadzic and Mladic went into hiding. It was only in 2008 that
Karadzic was arrested in Belgrade and in 2011 that Mladic was arrested in a
village in Serbia. The Karadzic trial began in October 2009. Closing arguments
were concluded in October 2014. The trial occupied 497 court days. There were
337 prosecution witnesses and 248 defence witnesses. The record is immense and
it is likely to take another two years before the appeal proceedings are
completed.
What are some of the lessons to be learned from
this trial? The first is the failure by the leading Western powers to take
seriously and act upon the arrest warrants that were issued by an international
court established by the Security Council under powers that made the orders of
the Tribunal binding on all member states. The United States was principally
responsible for establishing the Tribunal. It is a matter of regret and
especially for the hundreds of thousands of Karadzic’s victims that the
political will to order his arrest was lacking. The Security Council itself took
no steps to encourage his apprehension. That same absence of political will on
the part of the Security Council is evident with regard to the arrest warrant
issued by the International Criminal Court (ICC) against President Omar
Al-Bashir of Sudan. Again, that warrant on charges, including genocide, was
issued in consequence of a referral to the ICC by the Council. The unfortunate
lesson for the ICC is that when it acts on referrals by the Security Council it
will not necessarily