The limits of genocide

The definitive verdict against the political leader of the Bosnian Serbs, Radovan Karadžić, provides an anatomy of the atrocities that were committed during the conflict that ravaged the former Yugoslav republic between 1992 and 1995. But José Ricardo de Prada, the Spanish judge who sat on the panel at the appeals court, feels that the verdict fell short in one fundamental aspect: genocide. And it is for this reason that he entered a dissenting opinion.

“The first verdict contributed to building the truth about what happened during the war, and the appeal verdict could have built up the facts even more,” he said in a telephone interview from the Netherlands. De Prada, who will be returning to Spain’s High Court (Audiencia Nacional) in April, has extensive experience in international law, and was a member of the War Crimes Chamber of the Court of Bosnia and Herzegovina between 2005 and 2008.

The first verdict contributed to building the truth about what happened during the war, and the appeal verdict could have built up the facts even more

Judge José Ricardo de Prada

The first judgment against Karadžić was handed down by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 2016, and it made two very important points. Both of these points have been confirmed by the second verdict, which was made public on March 20. The first one found Karadžić guilty of the crimes committed against the Muslim and Croat populations in the same degree as the military leader who executed them, Ratko Mladic. In fact, the appeal verdict increases Karadžić’s jail term for genocide, crimes against humanity and war crimes, and now sentences him to life in prison, the same sentence given to Mladic in 2017.

“The legal figure that was used is Joint Criminal Enterprise. This notion was introduced with the first verdict: it is the relationship between the intellectual perpetrator and the direct perpetrator, like criminal association in Spanish law,” explains Judge De Prada. “It is not just the individuals who physically carry out the act who are held accountable, but also the intellectual perpetrators. This legal figure is used to judge cases of drug trafficking and terrorist organizations, because without it, it would be impossible to charge the bosses.”

The first verdict against Karadžić was historic because it confirmed that in late 20th-century Europe, in the presence of international troops, the crime that many jurists consider to be the worst of all, genocide, was indeed committed. The term was coined by a Polish lawyer named Raphaël Lemkin after World War II, when he found himself in need of a new word to describe the Shoah.

The concept of genocide has been so well shielded that it is nearly impossible to prove

Judge José Ricardo de Prada

Since 1948, the concept has existed in international law as “intentional action to wholly or partially exterminate a national, ethnic or racial group,” and it was not even applied to Nazi bosses at Nuremberg because it was not yet in force. There are very few genocides acknowledged by international law, and what the Serbian radicals did to Bosnian Muslims is one of them.

It is a crime that is extremely difficult to prove because evidence and testimony must be provided that there was an intent to exterminate; that is, not just that large-scale crimes were committed, but that the goal of those crimes was to try to exterminate the members of a group for the sole fact of having been born into it. In the first verdict against Karadžić, the court found that this had happened but only in Srebrenica, in July 1995, toward the end of the war, when 8,000 men and boys were exterminated in this Bosnian city in a massacre that was designed and executed by Karadžić and Mladic.

The ICTY found that elsewhere in the country there were war crimes and crimes against humanity, that thousands of Muslims were expelled through a policy of terror, that there were mass rapes and confinements in concentration camps; but the genocidal intent behind these actions was not proven. In his dissenting opinion, Judge José Ricardo de Prada considered that an opportunity has been lost for international justice to expand the perimeter within which to apply the crime of genocide.

The term “genocide” was coined by a Polish lawyer named Raphaël Lemkin after World War II

“In Srebrenica it is very clear, because it was proven that Karadžić had very specific information and knowledge,” explains the Spanish judge. In his dissenting opinion, he defended that a definition of genocide based merely on “intent” makes no sense, and that it should be based on something much more objective, in this case the crimes against people who were persecuted for being Muslims or Croats.

“The concept of genocide has not been extended to other places where there was ethnic cleansing as part of a plan to terrorize civil society. This is only achieved through genocidal acts, but the court considers that there is reasonable doubt when it comes to proving an intention of complete extermination. The concept of genocide has been so well shielded that it is nearly impossible to prove. This is a very important verdict, a historic one, that sets out the truth about events in Bosnia. But I think that it falls short.”

English version by Susana Urra.