The Many Significances of the Karadžić Conviction

Last week, the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted Radovan Karadžić, the former President of the Republika Srpska and Supreme Commander of the Bosnian Serb army. Specifically, he was found guilty of genocide, crimes against humanity, and war crimes for atrocities committed during the war in Bosnia and Herzegovina from 1991 to 1995. Karadžić is the most prominent figure to be convicted at the ICTY in its 23-year history and he was sentenced to 40 years’ imprisonment. What will this conviction mean for the victims, the former Yugoslavia, the ICTY, and the international criminal justice project generally?

The judgment contained few surprises. Karadžić was acquitted of one of the two counts of genocide but was convicted of crimes against humanity for the ethnic cleansing that occurred across many municipalities in Bosnia in 1992. And, he was convicted of genocide for the massacre of more than 8,000 men and boys at Srebrenica in 1995. This parsing, while not satisfactory to all, is consistent with all prior ICTY judgments that have adjudicated the crimes in Bosnia. Karadžić was also convicted of crimes against humanity and war crimes for attacks that terrorized civilians in Sarajevo from 1992 to 1995, and of the crime of taking UN hostages in 1995. There will be some disputes on appeal at the edges of some of the Trial Chamber’s findings, but most expect that the judgment will largely stand.

Perhaps the only startling aspect of the judgment was the 40-year sentence, and here the judges seem to have lost their way. Others at the ICTY have received life sentences for narrower crimes, so it was mystifying that the Chamber failed to impose a life sentence in this case. The judges found Karadžić’s resignation of his position and withdrawal from public life in 1996 to be a mitigating factor. Karadžić had claimed (but the Judges did not find) his withdrawal was in exchange for immunity from prosecution purportedly granted by Richard Holbrooke.

But Karadžić’s resignation came only after he had achieved his objectives of ethnic cleansing and separation, and he obviously did not genuinely believe he had been granted immunity because after he left office he immediately went into deep hiding, changing his name and appearance, and was a fugitive from justice for 13 years. The Chamber also gave Karadžić a lesser sentence because of his “expressions of regret.” But normally expressions of regret are relevant only when the accused accepts some responsibility, which Karadžić never did. Instead, he consistently blamed others and the victims, even suggesting at times that they deliberately committed crimes on themselves in order to win sympathy. The Chamber’s failure to impose a life sentence in this case, clearly deserved, is an unfortunate stain on the result.

The conviction will mean different things to different people. For the victims, the reactions will be mixed. On the one hand, there must be some measure of satisfaction that even if it took decades, Karadžić was pursued, brought to The Hague, tried, and convicted. On the other hand, some victims have already denounced the failure to convict for genocide for the 1992 crimes and the surprisingly low sentence.

It is probably too soon to tell how it will affect the region of the former Yugoslavia. Today many will likely assess the verdict according to their own biases and personal histories. Press reports indicate that Bosnian Muslims have tended to find that the judgment did not go far enough, while Serbs have alleged that it was unfair. But the judgment, together with all of the judgments that have been handed down at the ICTY and the national war crimes courts in the region, will also help write the history going forward and shape the opinions of future generations. Because of the work of the courts, fundamental facts about the crimes and the responsibility of Karadžić and others will be much more difficult to deny or ignore.

For the institution, the conviction of Karadžić is a crowning achievement. The prosecution team was tirelessly led by American Alan Tieger, the son of Holocaust survivors and known in the US as one of the four federal prosecutors in the 1993 Rodney King case, and Hildegaard Uertz-Retzlaff, a German prosecutor who has been at the ICTY for more than two decades. They were supported by dozens of lawyers, investigators, and staff drawn from around the world who worked for years putting together this enormously complex case (the judgment in the case is 2,615 pages long).

The continued political support for the ICTY from the United States and the European Union has been just as essential to the success of the prosecution. The pressure from both (conditioning aid and ascension to the EU on cooperation with the ICTY) ensured the steady arrest and surrender of accused persons to The Hague, including Karadžić in 2008. As a result of this ongoing support, there are today no fugitives remaining among the 161 persons charged by the ICTY. Unfortunately, this same kind of sustained, political backing has been missing for much of the work of the International Criminal Court (ICC), now investigating crimes in nine separate countries around the world. International criminal tribunals are not institutions that can simply be created and pushed out into the world to do their thing. Because of their limited powers, they require the kind of sustained support that has been critical to the success of the ICTY.

Finally, the Karadžić case demonstrates the value of allowing an institution to focus on a conflict over many years, and here we may be concerned about the ICC model. The Karadžić case was built on the prior prosecutions of tens of defendants for all of the different components of what ultimately became the Karadžić case. Those cases gave the investigators and prosecutors the opportunity to refine and deepen their understanding of events, and to bolster and strengthen their evidence, so that when it came time to try Karadžić, the figure at the top, they were fully prepared.

The ICC prosecutors will never have this luxury. Since their jurisdiction is significantly vaster (there are now 124 members of the Court) and they will be prosecuting cases in multiple places at once, it is understood that the Court will only be able to prosecute a few individuals from each conflict. The ICC prosecutors therefore feel compelled to start with prosecutions at the top, which puts them in a significantly weaker position. In this respect, it is not surprising that some of the cases at the ICC have faltered. As we move forward, it will be essential to consider how this new model will succeed. Other actors — including national and regional courts and NGOs — will have to help fill the gap, supporting preliminary investigations on the ground to assist the ICC in the development of its cases. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).