The Karadžić Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide

• Citation: Vol. 31 No. 2
• Publication year: 2017

The Karadžic Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide

Milena Sterio

THE KARADŽIC GENOCIDE CONVICTION: INFERENCES, INTENT, AND THE NECESSITY TO REDEFINE GENOCIDE

Milena Sterio^*

Introduction

In March 2016, the International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted former Bosnian Serb leader, Radovan Karadžic, of genocide and crimes against humanity and sentenced him to forty years imprisonment.¹ In particular, Karadžic was found guilty of genocide in Srebrenica, the persecution of Bosnians and Croats throughout Bosnia and Herzegovina, terrorizing the population of Sarajevo, and taking United Nations (U.N.) peacekeepers hostage.² According to the ICTY Trial Chamber verdict, the crimes were committed as part of four joint criminal enterprises (JCE) in which Karadžic was a protagonist.³ In July 2016, Karadžic announced, through his defense counsel, that he would appeal the verdict on the ground that he did not get a fair trial—according to Karadžic's attorney, Peter Robinson, "[t]he trial chamber considered him guilty in advance and then constructed the verdict to justify its presumption."⁴ Robinson also stated that "[t]he chamber concluded [Karadžic] had an intention to kill the captives from Srebrenica on the basis of its interpretation of a coded telephone conversation. Such a way of drawing conclusions is unfounded and incorrect, so the verdict is unfair."⁵ The ICTY prosecutors announced, on their end, that they also would appeal the verdict in order to ask "for Karadžic [sic] to be found guilty of the genocide in seven other Bosnian municipalities in 1992, and for his sentence to be raised to life imprisonment."⁶ The appeals chamber of the Mechanism for International Tribunals, which is taking over the remaining work of the ICTY as it shuts down,

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will rule on the appeals, but as of now there is no clear deadline for delivering the ruling.⁷

In anticipation of the appeals chamber's definitive ruling on the Karadžic verdict, this Article will address and analyze Karadžic's genocide conviction. The Article will specifically focus on the interpretation of genocide espoused by the ICTY judges in this recent decision. As other commentators have already noted, the most striking finding of the ICTY Trial Chamber was that Karadžic had specific genocidal intent regarding the Srebrenica killings.⁸ During the Karadžic trial, the Prosecution had not been able to provide "smoking gun" evidence that Karadžic knew about the killings in Srebrenica as they were taking place; instead, the Prosecution's case was essentially circumstantial.⁹ The Trial Chamber accepted the Prosecution's reasoning and drew inferences from indirect evidence.¹⁰ It found that Karadžic was a participant in a JCE, sharing its common purpose: to eliminate Bosnian Muslims from Srebrenica. This common purpose eventually evolved to encompass the agreement to kill all Bosnian adult males and to forcibly transfer women and children.¹¹ The most important item of evidence that the Trial Chamber took into account was a conversation that Karadžic had with another official, Miroslav Deronjic.¹² From this conversation, the Trial Chamber inferred first that Karadžic knew about the killings at Srebrenica as they were taking place and second that Karadžic, because he did not do anything after this conversation, must have shared Deronjic's (and others') intent to kill Bosnian Muslims at Srebrenica.¹³ This interpretation of the intent requirement under the Genocide Convention and the customary law definition of genocide is novel and had not been espoused by other tribunals in the past.

This Article will first discuss and analyze the Genocide Convention and its strict definition of genocide and the "intent" requirement. It will then focus on the evolution of this definition, in light of the recent Karadžic case. This Article will demonstrate that in modern-day conflicts, the finding of genocidal intent

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may be an impossible task for the prosecution and that the ICTY Trial Chamber's method of inferring intent based on knowledge and other indirect factors may be the only way that prosecutors will be able to obtain future genocide convictions. This Article will then discuss a possible re-drafting and re-conceptualizing of the genocide definition, in light of modern-day conflicts and warfare.

I. Genocide Convention: A Strict Definition of Genocide

The term "genocide" was coined by Polish jurist, Raphael Lemkin, to describe the Nazis' actions during World War II against the Jews.¹⁴ According to Lemkin, "[g]enocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group."¹⁵ Lemkin coined the term "genocide" by combining the Greek word genos (race, tribe) and the Latin word caedere (to kill).¹⁶ According to Lemkin's view of the crime of genocide, "the critical elements of genocide were not the individual acts, though they may be crimes in themselves, but the broader aim to destroy entire human collectivities."¹⁷

The Holocaust, as well as the trial of the Nazi defendants at Nuremberg, spurred states to negotiate a treaty on genocide to criminalize these atrocities.¹⁸ In December 1948, most U.N. member states agreed upon the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).¹⁹ Article II of the Genocide Convention defines genocide as

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)

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Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.²⁰

The definition of genocide, as iterated in the Genocide Convention, has become customary international law as well as a jus cogens norm of international law.²¹ As such, this definition is binding on all states.²²

The definition of genocide is narrow, as it requires proof that one of the enumerated groups (national, ethnical, racial, or religious) was targeted "as such." Scholars have noted that the definition of genocide under the Genocide Convention is historically attributable to the role of the Soviet Union in this treaty's negotiation—in the late 1940s, Soviet leader Joseph Stalin was committing massive purges of political enemies, and the Soviet Union did not want the persecution of members of political groups to constitute genocide.²³ The specific phrase "as such" had been offered by the Venezuelan representative during the Genocide Convention treaty negotiations as a compromise position, in order to conclude an ongoing discussion about the questions of intent and motive in the definition of genocide.²⁴ A first draft of the Convention had included, after enumerating protected groups, the phrase "on grounds of the national or racial origin, religious belief, or political opinion of its members."²⁵ The Venezuelan amendment substituted the words "as such" in lieu of the longer phrase, and the amendment's author justified his proposal by explaining that an enumeration of motives was useless and even dangerous.²⁶ According to the Venezuelan representative, a restrictive enumeration of motives could be abused by genocidaires to help them avoid being charged with genocide, as they would be able to argue that their crimes had been committed for reasons other than

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those listed in Article II.²⁷ "The purpose of [his amendment] was to specify that, for genocide to be committed, a group - for instance, a racial group - must be destroyed qua group."²⁸

In other words, in order to secure a genocide conviction, a prosecutor must be able to demonstrate that members of a protected group were targeted because of their membership in that protected group. It should also be noted that genocide under the Convention does not require the actual destruction of a protected group; instead, the crime is complete if one of the enumerated acts was committed with the specific intent.²⁹ However, the motive or motives behind the intent to destroy a protected group are irrelevant.³⁰ As one scholar has noted, "[p]rovided the requisite intent exists, it matters not whether that intent was fueled by animus toward the protected group, by hopes of financial gain, by a personal grudge against individual group members, by ideological or wartime resistance, by misguided beneficence . . . or indeed by any reason at all."³¹ While motive evidence generally has probative value toward establishing genocidal evidence, such evidence does not suffice alone to establish the mens rea of genocide. Thus, establishing beyond a reasonable doubt that genocide has occurred may be a difficult prosecutorial task, and some instances of massive killings, perhaps regrettably, do not amount to genocide under the Genocide Convention.

For example, a debate persists whether the Cambodian Khmer Rouge regime committed acts of genocide against the Cambodian population in the late 1970s.³² The Khmer Rouge regime "launched a revolution abolishing all existing societal institutions, expunging all foreign influences, and transforming the entire population into a collective workforce," and the regime also "acted ruthlessly against all elements suspected of being hostile to the new order."³³ The Khmer Rouge regime particularly targeted professionals, such as teachers

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and students, as well as those who spoke a foreign language and were suspected of having ties to foreign countries.³⁴ It may be argued that these acts constituted genocide under the Genocide Convention because the Khmer Rouge regime displayed a clear intent to destroy a national...