SHAFAQNA – March 21, 2016 week proved to be a glorious one indeed for the international criminal justice system as it witnessed some of the most prominent judicial achievements of the decade in terms of delivering justice within the international sphere.
The week commenced with the much awaited ICC verdict (International Criminal Court) against Bemba Gombo – the former Congolese vice president and leader of the Movement for the Liberation of Congo. Following a lengthy trial, Gombo was convicted of war crimes and crimes against humanity.
While the ICC verdict is significant in itself, since it marks years of judicial wranglings, evidence gatherings and testimonies, it is the recognition of rape as war crime, and crime against humanity which stands out. In Gombo’s case, rape was used as a weapon of war against civilians. Although the rapes were not necessarily committed by Gombo himself, it is under his orders that troops perpetrated such atrocities.
On March 23, the Pre-Trial Chamber of the ICC confirmed 70 charges brought by the Prosecutor of the Court against Dominic Ongwen. Ongwen is the first senior of the Lord’s Resistance Army to be tried by the ICC.
On March 24, the charges against Ahmad Al Faqi, a member of Ansar Edddine, an offshoot of was al-Qaeda, were confirmed by the Pre-Trial Chamber. It is important to note that Eddine’s trial will be the first of its kind in that the ICC agreed to prosecute an individual on crimes against cultural properties.
On the same day, the International Criminal Tribunal for Yugoslavia ICTY), that is dealing with its closing cases, delivered its verdict against Radovan Karadzic. Karadzic, the former President of Republika Srpska and Supreme Commander of the Serbian forces. He was convicted of genocide, crimes against humanity, and violations of the laws or customs of war committed during the armed conflict in Bosnia and Herzegovina, from 1992 until 1995.
The ICTY was established in 1993 by the UN Security Council to deal with war crimes which took place during the Balkans wars in the 1990’s. Karadzic is the most senior of Serb leaders to have been prosecuted by the ICTY.
Before Karadzic’s trial, the President of the Federal Republic of Yugoslavia, Slobodan Milosevic, was also prosecuted by the ICTY. However, in 2006 and before his trial could reach its end Milosevic died in prison.
Karadzic was convicted of genocide for the crimes he committed in the area of Srebrenica back in 1995.
The Srebrenica massacre/genocide still echoes of the atrocities which were committed against Muslim communities, in the name of ethno-sectarian cleansing, a scar onto the region, and the world. In July 1995, during the span of a few days an estimated 800 Muslims: men and young boys, were butchered by Serbian forces.
The fall of the town of Srebrenica, which led to the subsequent systematic slaughter of Muslims was pinned on the Dutch UN peacekeeping mission’s failure to protect the area, even though it had already been labelled a “safe zone”.
Apart from the extermination of Muslim men, Muslim women and girls were intentionally separated by the Serbian forces, only to be gang-raped.
At the time Karadzic reacted to the UNSC calls to withdraw from an area by announcing: “Srebrenica is our land.” He subsequently made clear his troops would not retreat willingly or peacefully.
With respect to other municipalities in Bosnia and Herzegovina, Karadzic was acquitted of all charge of genocide, even though the Chamber found that a vast number of Bosnian Muslims and Bosnian Croats in several towns, and villages had been forcibly displaced from their homes by the Serbian Forces. In addition to committing genocide, the Judges of the ICTY found that in between April 1992 and November 1995 Karadzic carried out a vengeful campaign against civilians in Sarajevo: sniper-kills and shelling, in order to instill fear and panic. Karadzic also ordered for UN personnel to be taken hostage to compel the NATO to abstain from conducting air strikes against Bosnian Serb targets – which crime he was convicted of by the commission.
Karadzic’s individual criminal responsibility is based on the Joint Criminal Enterprise (JCE) – a doctrine carried within the ICTY, which essentially enounces and takes into account individual’s legal responsibility within any given organization. It recognizes group and organization collective role, while recognizing member’s personal legal liability.
Based on the crimes he perpetrated Karadzic was sentenced to 40-year imprisonment.
Such a verdict against Karadzic was a welcome development.
The victims of the Bosnian war will likely find some form of comfort and sense of closure, through vindication, in Karadzic’s sentence. Srebrenica’s mothers have long awaited for their pain and calls for justice to be acknowledged in such an international stage.
That being said, the sentence hardly measures up to the atrocity of the crimes committed. The 40-year sentence poses a question of fairness and proportionality.
To assess whether or not the sentence was in fact fair and proportionate we would have to initially
determine our point of departure and our evaluative framework. There are criminal theories justifying the punishment.
The punishment as an exception needs justification – Criminal theories offer a response to the question why we punish: retribution, deterrence, restorative justice and expressivism are common criminal theories.
Among such theories, the most applicable to the international criminal justice is expressivism. The international criminal justice is inherently selective; due to its selectivity other theories do not fit this context, because they are not able to justify the selectivity of such system.
For instance, because the international prosecution is an occasion rather than a typical event and there is no certainty about its occurrence due to a wide range of practical difficulties, the deterrent effect of the punishment in the international criminal justice does not work properly. It is only the expressive theories that can provide a justification for selective justice in the international sphere. According to expressivism, the main function of punishment is expressive. Indeed, the punishment is a tool to convey a message. This message is mainly condemnation. By punishment, the international community intends to show its condemnation of the commission of a crime. Expressivism does not see the punishment as the imposition of some pain upon the offender. Rather, expressivism by punishing seeks to show that international community is not inactive and the violation of the international norms and values should not go unpunished. Punishment, in the context of the international criminal justice means that the voice of the voiceless: ie, victims, has been heard and that their victimness has been acknowledged. From this perspective, trial and conviction are more important than punishment.
Prosecution of the perpetrators of international crimes is indeed a voice given to the victims. It is evident that no punishment can ever be equal and/or proportionate when it comes to international crimes due to their nature.
The main feature of core crimes – those most serious crimes the international community wants to legislate over due to their sheer breadth and depth. Such crimes imply grand scale casualties and/or death.
The value of punishment in this context is highly symbolic and expressive.
However such function requires some degree of proportionality. Expressive proportionality suggests that the amount of punishment should be proportionate with the amount of condemnation. It is a legitimate expectation on the part of the victims to see proportionality in between the suffering they endured and the punishment administered.
Now in relation to Karadzic’s case, it appears such proportionality is absent. The offender was convicted of charges of genocide. Genocide is a crime above all crimes – the most heinous act any individual could ever commit.
Although there is no straightforward hierarchy between international crimes, it is clear that genocide stands atop all other crimes.
Srebrenica was one of the bloodiest, and most stomach churning event ever committed in this century, if not ever. To add insults to injuries Karadzic perpetrated other crimes: including the kidnapping of UN officials . In the face of such infractions before the law, a 40-years sentence does not appear proportionate. A life sentence would have been more in line with the gravity of his crimes.
If we are to assume that no crimes can be worse than crimes of genocide, and if we are to assume that a life sentence stands the highest expressive legal punishment the court could dispense, then Karadzic was offered too much leniency.
The most serious crimes, i.e. genocide, should be answered by the most serious exciting punishment, namely life imprisonment. If genocide does not deserve a life sentence then what does?
Interestingly the ICTY did sentenced criminals to life sentences in cases where genocide was not listed as a charge – the case of Milan Luki for example, or Zdravko Tolimir.
Such inconsistency between this judgment and other cases and the ruling theory diminishes the validity of the judgment.
Bosnia’s victims have been waiting a long time for their voices to be heard, and they were offered but a whisper.
And while justice was somewhat served, it was not really delivered.
By Mohammad Hadi Zakerhossein – PhD Student in International Criminal Law