By: Sona Movsisyan
The history of the conflict in the Former Yugoslavia between 1992 and 1995 has been well documented. To briefly summarize, the former Yugoslavia was a federation of six republics, combining Serbs, Croats, Bosnian Muslims, Albanians, and Slovenes populations. Generally, the communities lived peacefully amongst each other. However, in 1991, Slovenia and Croatia declared independence from the Former Yugoslavia. Then, in 1992, Bosnia-Herzegovina, along with Macedonia, sought independence as well. As the region dissolved, tensions grew stronger because the Bosnian Serbs were against the separation. The clashes between the republics worsened, resulting in the Serb-dominated Yugoslav army to commit atrocities against the Bosnian Muslim and Croatian populations. The outcome of the war was horrific. Hundreds of thousands of people were murdered as an act of genocide, millions were removed from their homes in an effort to ethnically cleanse the non-Serb communities, and women and children were raped and kept as sex slaves for the army and militias.
The mass atrocities committed in Croatia and then in Bosnia and Herzegovina created national attention and outcry from the international community. The United Nations stepped in early on and urged the parties involved to end the violence and follow international customs and law. However, it wasn’t until late 1992 when the United Nations established a Commission of Experts to report on the situation from the ground. The examination of the circumstances revealed “horrific crimes and provided the Secretary-General with evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law.” Based on the Commission’s documented findings, the Security Council decided to establish the first international tribunal since the hearings in Nuremberg and Tokyo.
The tribunal was named the International Criminal Tribunal for the Former Yugoslavia (ICTY). Through the mandate, the court was established to “bring to justice those responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991 and thus contribute the restoration and maintenance of peace in the region.” The mandate also created the ICTY Statute, which provided jurisdiction to the court over individuals (even heads of State), political parties, army units, and administrative entities. The court was given authority to prosecute criminals who committed grave breaches of the 1949 Geneva Conventions; violations of the laws or customs of war; genocide; and crimes against humanity.
The ICTY was ongoing for more than 20 years. During its time, the Prosecution indicted 161 individuals for perpetrating one of the four categories of crimes listed above. Of those indictments, 90 were successfully sentenced; 18 were acquitted; 3 are currently ongoing on appeal; 13 individuals were referred to national jurisdictions for prosecution; and 37 accused had their indictments withdrawn or died. Despite the fact that the ICTY officially closed its doors after 24 years, several cases continue to be litigated on appeal. One of which includes a very prominent government official, Radovan Karadžić.
Mr. Karadžić was initially charged with “two counts of genocide, five counts of crimes against humanity, and four counts of violations of the laws or customs of war committed by Serb Forces during the armed conflict in Bosnia and Herzegovina.” His participation and accountability during the war stemmed from his position as the founding member of the Serbian Democratic Party, and then President from July 1990 to July 1996. Furthermore, Mr. Karadžić was President of the Republika Srpska and the Supreme Commander of its armed forces until July 1996. The indictment accused Mr. Karadžić of being part of the Joint Criminal Enterprise and participating in the removal of Bosnian Muslims and Croats who lived in Bosnia and Herzegovina. Additionally, it was alleged that he helped “carry out a campaign of sniping and shelling against the civilian population of Sarajevo, aimed to spread terror amongst them.” Lastly, Mr. Karadžić was charged with eliminating Bosnian Muslins in Srebrenica by killing the male population and forcibly removing the women, children, and elderly.
Mr. Karadžić’s first trial lasted for 7 years and concluded in March 2016, where the Trial Chamber III of the ICTY convicted him of “genocide in the area of Srebrenica in 1995 and of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians, and hostage-taking.” The Trial Chamber reviewed more than 11,000 exhibits in total and heard over 500 witnesses. However, he was acquitted of genocide in other areas of Bosnia and Herzegovina. Mr. Karadžić was sentenced to 40 years. Following the trial, Mr. Karadžić appealed the Trial Chamber’s decision. After the submission of briefs, oral hearings took place on April 23 and 24, 2018.
I had the opportunity to be present in The Hague, Netherlands during the oral arguments for Mr. Karadžić’s appeal. I was interning for the ICTY, Office of the Prosecutor. It was surreal sitting in the courtroom, hearing the alleged violations committed by Mr. Karadžić and the Prosecutor’s plea for the Chamber to not overturn his conviction. Therefore, when the verdict was announced exactly 3 years after his initial sentence, it was a historic moment for ICTY jurisprudence. The Appeals Chamber, which was comprised of 5 judges, delivered the judgment and reversed in part one of Mr. Karadžić’s convictions related to the Joint Criminal Enterprise for certain Scheduled Incidents. More notably, the Appeals Chamber in a unanimous decision dismissed all other parts of his appeal and affirmed the remaining convictions of “genocide, persecution, extermination, murder, deportation, and other inhuman acts (forcible transfer) as crimes against humanity, as well as murder, terror, unlawful attacks on civilians, and hostage-taking as violations of the laws or customs of war.” Even more importantly, the Appeals Chamber granted the Prosecution’s sentencing appeal, stating that the “Trial Chamber committed a discernible error and abused its discretion in imposing a sentence of only 40 years of imprisonment.” Instead, the Appeals Chamber determined that life imprisonment was a more appropriate punishment based on the nature of the atrocities committed.
The goal of the ICTY was to stop impunity and achieve justice for the victims who suffered during the war. Throughout the past two decades, there has been criticism about how the tribunal operated, for instance, that the charging decisions and sentencing was too political and that it took too long to hold the perpetrators accountable. Despite the criticism, Mr. Karadžić’s decision was unprecedented- a Head of State was found guilty of grave violations of international law.
 Bosnian Genocide, History.com (Oct. 14, 2009), https://www.history.com/topics/1990s/bosnian-genocide.
 What is the Former Yugoslavia, U.N. Int’l Residual Mechanism for Crim. Tribunals, http://www.icty.org/en/about/what-former-yugoslavia (last visited Apr. 16, 2019).
 Balkans war: a brief guide, BBC News (Mar. 18, 2016), https://www.bbc.com/news/world-europe-17632399.
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 Bowcott, supra note 11.
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 Case Information Sheet, supra note 19.
 Press Release Feb. 22, 2019, supra note 22.
 Press Release, The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals Delivers Judgment in the Karadžić Case, U.N. Int’l Residual Mechanism for Crim. Tribunals (Mar. 20, 2019), http://www.irmct.org/en/news/appeals-chamber-international-residual-mechanism-criminal-tribunals-delivers-judgement-karadžić.
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