Bemba and Karadžić Convictions Set New Landmarks for International Justice

Publication Date: 
Thursday, May 5, 2016
File picture from Bosnian police records show Radovan Karadzic, now infamous Bosnian Serb leader and indicted war criminal, when he was arrested for industrial crimes in November 1984. This photo was recovered in 1992 from a Sarajevo trash bin by Metro photographer Rikard Larma

Two recent rulings by the International Criminal Court (ICC) and International Criminal Tribunal for the former Yugoslavia (ICTY) mark breakthroughs for international justice and the fight against impunity for war crimes and crimes against humanity, including the use of sexual violence as a weapon of war. This blog post provides an overview of the significant aspects of these two rulings.

Bemba at the ICC

In a landmark ruling in the fight against impunity for sexual violence in conflict, the ICC recently convicted Jean-Pierre Bemba Gombo of war crimes (murder, rape, and pillaging) and crimes against humanity (murder and rape). Bemba is the former vice president of the Democratic Republic of the Congo, and former leader of the Congolese Liberation Movement (MLC), a Congolese rebel group that committed widespread atrocities in the Central African Republic (CAR) from 2002 to 2003. Bemba was arrested in exile in Brussels in 2008, at which time he ran the main Congolese opposition party.

The Bemba conviction is significant for several reasons. First, Bemba’s conviction is the ICC’s first to focus on sexual violence as a weapon of war. This marks a victory in the international movement to combat impunity for sexual and gender-based violence, a priority set by ICC prosecutor, Fatou Bensouda. In a sign of changing times, the Bemba case was also presided over by three female judges—Judge Sylvia Steiner of Brazil, Judge Joyce Aluoch of Kenya, and Judge Kuniko Ozaki of Japan.

Second, the Bemba case strengthens the precedent for holding leaders responsible for crimes committed under their watch, even without their direct participation, which is particularly important in the case of sexual violence. It is the ICC’s first conviction under the legal principle of command responsibility, which holds commanders criminally responsible for failing to take action to prevent, repress, or punish crimes they knew or should have known to be committed by their subordinates. Enshrined in the ICC Statute (Art. 28), the rule of command responsibility is now widely considered to be a rule of customary law, which has its roots in the Nuremberg trials following World War II, as well as in Additional Protocol I to the Geneva Conventions (Article 86(2)), and in the statutes of the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL).

According to the unanimous judgment, Bemba’s actions—including general public statements to troops not to mistreat civilians, the formation of two investigative commissions, and the trial of several low-ranking soldiers on pillaging charges — were “a grossly inadequate response to the consistent information of widespread crimes committed by MLC soldiers in the CAR of which Mr. Bemba had knowledge.” Additionally, as Jocelyn Kelly, director of Harvard Humanitarian Initiative's (HHI) Women in War program writes, the case “represents a breakthrough in war crimes conviction: a commander who controlled his troops largely from a different country was still found legally culpable for his actions. As a result, the ruling signals not an incremental gain in the movement to prosecute sexual violence as a war crime—it is an unprecedented stride forward in holding the highest-level leaders accountable for the crimes they orchestrate.” According to Amnesty International’s director for west and central Africa, Samira Daoud, the Bemba conviction “sends a clear message that impunity for sexual violence as a tool of war will not be tolerated,” and “that military commanders and political superiors must take all necessary steps to prevent their subordinates from committing such heinous acts and will be held accountable if they fail to do so.”

Third, the Bemba case also marks progress in the participation of victims in ICC proceedings. In response to criticisms that international justice mechanisms (including the ICTY, ICTR, and ICC) have been removed from the victims and societies to which they seek to bring justice, a movement has arisen to increase victim participation at these courts. As a result of these efforts, the Rome Statute of the ICC took the unprecedented step of recognizing a right of victims to participate in judicial proceedings (Art. 68(3)), establishing an autonomous role for that purpose, and recognizing a right to reparations (Art. 75). The statues of subsequently established courts, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL), have included similar provisions. While significant concerns remain about the extent to which victims’ participation is meaningful, over 5,000 victims were granted the right to participate in the Bemba hearings, a record for the ICC.

Karadžić at the ICTY

In another notable case last month, the ICTY convicted former Bosnian Serb leader Radovan Karadžić of genocide, war crimes, and crimes against humanity for his role in ethnic cleansing, the siege of Sarajevo, and the massacre of 8,000 Muslim men and boys in Srebrenica during the Bosnian war from 1992 to 1995. The case is significant in that Karadžić is the most senior leader to be prosecuted and convicted by the tribunal; former Serbian President Slobodan Milošević died in custody in 2006 before the completion of his trial, and Karadžić’s military chief, Ratko Mladic, awaits judgment in a separate case. From the time of his indictment by the ICTY in 1995 until his arrest in Serbia in 2008, the fugitive Karadžić lived with relative freedom in Belgrade, practicing alternative medicine under an assumed identity.

Following a lengthy trial, the ICTY found Karadžić guilty of genocide for the Srebrenica massacre. crimes against humanity (persecution, extermination, murder, deportation and forcible transfer), and war crimes (terror, unlawful attacks on civilians, and hostage-taking). The ICTY found him not guilty of one separate count of genocide related to seven other municipalities. Karadžić’s conviction rests on similar grounds to Bemba’s—namely, his responsibility as a leader for crimes committed under his command.

Similar to the ICC’s Bemba conviction, which hinged on the principle of command responsibility, the ICTY’s Karadžić conviction rests on the concept of joint criminal enterprises (JCE). The ICTY uses this mode of personal criminal liability, imported from US criminal justice, to bring charges against senior political and military leaders who contributed to the broader perpetration of crimes, even where the accused is far removed from the actual commission of the crime. The tribunal found Karadžić to bear individual criminal responsibility for his participation in multiple JCEs geared toward eliminating the Bosnian Muslims in Srebrenica, carrying out a campaign of sniping and shelling civilians in Sarajevo, and taking UN personnel hostage. The ICTY sentenced Karadžić to 40 years in prison.

As with the Bemba case, many international observers have lauded Karadžić’s conviction as a landmark for international justice. Serge Brammertz, chief ICTY prosecutor, stated:

This judgment demonstrates that justice for the most horrific atrocities is possible. … Thirty years ago, men such as Karadžić would have remained in power or enjoyed a comfortable exile. Today, they have to stand before a court of justice and their victims and be judged for what they have done.

UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein lauded the conviction of Karadžić as “hugely significant” and “symbolically powerful—above all for the victims of the crimes committed during the wars in Bosnia-Herzegovina and across the former Yugoslavia, but also for victims across the world.” “Twenty-one years after Karadžić was indicted,” stated Zeid, “this verdict is a forceful manifestation of the international community’s implacable commitment to accountability.” Param-Preet Singh, senior international justice counsel at Human Rights Watch, concurred, stating that “The Karadzic verdict sends a powerful signal that those who order atrocities cannot simply wait out justice,” and calling on national courts to increase their prosecution of wartime cases.

While questions remain over the extent to which these legal accountability measures will ultimately promote reconciliation and healing in the conflict regions they address, taken together, the Karadžić and Bemba convictions set landmark precedents for international justice and the accountability of senior leaders for serious atrocities, including sexual violence as a weapon of war.

Comments

Hakimi Abdul Jabar's picture

Keep up the good work Julia Brooks & ATHA.SE, albeit trudgingly alone...

Prosecute & Punish the Offenders Whilst Protecting the Innocents

International criminal law is the part of public international law that deals with the criminal responsibility of individuals for international crimes. There is no generally accepted definition of international crimes. A distinction can be made between international crimes which are based on international customary law and therefore apply universally and crimes resulting from specific treaties which criminalize certain conduct and require the contracting states to implement legislation for the criminal prosecution of this conduct in their domestic legal system. The international core crimes, i.e., crimes over which international tribunals have been given jurisdiction under international law, are: genocide, war crimes, crimes against humanity, and aggression. International criminal law finds its origin in both international law and criminal law and closely relates to other areas of international law. The most important areas are human rights law and international humanitarian law as well as the law on state responsibility. The sources of international criminal law are the same as those of general international law mentioned in article 38(1) of the Statute of the International Court of Justice: treaties, international customary law, general principles of law, judicial decisions and writings of eminent legal scholars. The Nuremberg and Tokyo trials signaled the birth of present-day international criminal law, i.e., the prosecution of individuals for international crimes before international tribunals. In the early nineties of the previous century international criminal law received a major stimulus with the establishment of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda by the United Nations Security Council. Also the creation of various internationalized or mixed criminal courts and the proposals of the International Law Commission, which resulted in the creation of the International Criminal Court in 2002, contributed to the rapid development of international criminal law during the last two decades.

The purpose of criminal law is to protect society by facilitating the detection and prosecution of criminal actions while protecting the rights of the accused. It has also been described as the means by which the state prosecutes and punishes individuals charged with violating the law.

Furthermore, the purpose of the Criminal Justice System among others is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent.

Despite the lack of consensus among scholars and advocates about the purposes of international criminal law and this lack of clarity further affects how the international criminal tribunals operate, the comparative gist between the application of the international and municipal criminal justice systems evoke the certain and essential subjective pronouncement, i.e. the prosecution and punishment of criminal offenders and their abettors that further lead to the protection of society, global & municipal.

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