A great deal of attention was raised by the arrest of genocide indictee Ratko Mladić in Serbia on 26 May 2011. Now with the arrest of Goran Hadžić on 20 July (and his transfer to The Hague for trial just two days later), the last of the fugitives has been brought to the International Criminal Tribunal for the Former Yugoslavia. The ICTY has charged 161 people with crimes and tried 126 of them.  

The government of Serbia expects quite a bit from this final arrest, which eliminates one of the main political barriers to obtaining status as a candidate for European Union membership. The benefit may or may not arrive: issues remain due to the unresolved status of Kosovo, and Serbia still has much work ahead of it on questions like corruption and judicial reform. Nonetheless these last two arrests could turn out to be crucially important, if not for Serbia’s political position then for what the cases might contribute to understanding the conflicts and crimes of the 1990s.

Mladić, having occupied a powerful and high-profile position and been charged with the gravest crimes, is the more prominent of the two remaining indictees. Yet Hadžić’s case, though the defendant is charged with lesser crimes and is less well known, could shed nearly as much light on the recent past. If the two newest trials are conducted and carried forward well, they could considerably deepen understanding of the violence of the 1990s and the role played by states in the abuse of civilians.

Neither Mladić nor Hadžić (who made his first appearance before the court on 26 July, refusing to plead) will conduct their own defence, as Slobodan Milošević did and both Radovan Karadžić and Vojislav Šešelj are doing now. When defendants have represented themselves, the results have included delays in the trials and poor argumentation that the presence of a competent lawyer would have avoided and improved upon. But this mix of lawyerly and self-representation might come to produce interesting consequences, in that (so the argument runs) if the transcripts of the main ICTY defendants are compared with one another, this could contribute a great deal indeed to understanding how violence was organised and carried out. The two newest defendants might well present revealing defences.

A question of responsibility

Ratko Mladić’s prominence and the nature of the charges against him guarantee that his trial will be the more closely followed. Mladić, like Radovan Karadžić, is charged with genocide, in Srebrenica and in ten other locations. Slobodan Milošević, whose trial ended without a verdict after his death in March 2006, was also charged with genocide in Srebrenica and in seven other locations. The only incident in the conflict for which the ICTY has made a finding that genocide occurred was in Srebrenica. Together with other actors, Mladić, Karadžić and Milošević were charged as participants in a “joint criminal enterprise” to achieve political goals by committing crimes against the civilian population.

Here, it is worth saying a little more about the legal implications of the category of “joint criminal enterprise”. This has been very widely mischaracterised as equivalent to the legal theory of conspiracy, which is a tool often used in organised-crime and antitrust cases. But they are very different. Under the theory of conspiracy, it is not necessary to show that an individual who is charged committed any offences - only that the individual was a participant in the conspiracy; whereas proving participation in a joint criminal enterprise before a court requires demonstrating that the accused participated in the formulation and execution of the criminal plan.

An example of trials that were conducted under the theory of conspiracy is the prosecution of the International Military Tribunal for the Far East in Tokyo, 1946-48. This process produced some verdicts that are now generally regarded as miscarriages of justice: people were convicted on the basis of the offices they held, and held responsible for crimes to which they did not contribute, for crimes they did not know about, and for political decisions that they opposed. An illustrative case is the one of Japanese general Tomoyuki Yamashita, convicted and sentenced to death for atrocities committed by Japanese troops under his formal command in the Philippines during the 1941-45 war, in spite of compelling evidence that he was not in communication with those troops nor exercised command over them.

The fact that, by contrast, the ICTY prosecutions had to prove that the individuals charged were themselves participants in the joint criminal enterprise has led to some mixed verdicts in which the chamber declined to convict people solely on the basis of the offices they occupied. An illustrative case is the “Operation Storm” trial, where two Croatian generals (Ante Gotovina and Mladen Markač) were convicted in good measure because of meeting transcripts indicating that they had taken part in formulating a strategy to expel civilians from territory that would be conquered, whereas a third (Ivan Čermak) who did not participate in formulating strategy was acquitted.

A similarly mixed outcome in the “Kosovo six” trial saw the people convicted receiving different sentences depending on their degree of involvement in the criminal enterprise; the chamber found that Milan Milutinović, although he was president of Serbia at the relevant time, did not participate in the formulation or execution of policy and acquitted him.

A defence by imputation

What all this suggests is that defendants charged with participation in a joint criminal enterprise - particularly one like the large-scale killings at Srebrenica in 2005, where the facts are largely established and confirmed by earlier verdicts, and consequently there is little point in attempting to deny them - have as the best defence available to them an argument that other actors had a greater role in the joint criminal enterprise than they did. For Mladić, that means pointing to Karadžić and Milošević.

A defence of this type conducted by Mladić could have important implications for the international position of Serbia, which was sued by Bosnia-Herzegovina for state responsibility for genocide before the International Court of Justice. The ICJ’s decision in 2007 found that Serbia was guilty of failing to prevent and punish crimes, but not of commission of crimes or complicity in them. The basis of the decision was the proclamation of a legal standard requiring demonstrable evidence that Serbia did not merely exercise “overall control” over the Bosnian Serb military but rather that there was a relation of “complete dependence” (see my analysis of the verdict, "Mujo, Mile and Štefica in the Jaws of Transition", EastEthnia, 5 March 2007).

Soon after Mladić’s arrest, the lawyer who led the defence of Serbia before the ICJ, Radoslav Stojanović, voiced concern that the Mladić defence could reopen the question of how much control was exercised over the Bosnian Serb forces from Serbia. Stojanović expressed the fear that Mladić’s “moral integrity is not on a level that he would be more concerned with Serbia than with himself”.

The moral integrity of Mladić aside, it is clear that the various people charged in relation to the same crime do not necessarily share an interest. In fact their interests may be dramatically opposed to one another, as it benefits Karadžić to indicate that crimes were the fault of a military led by Mladić, it benefits Mladić to suggest that they were the product of political decisions guided by Karadžić, and both of them to point to the role of the deceased Milošević.

From a legal point of view it is likely that defence lawyers will see the benefit of downplaying their clients’ responsibility by highlighting the responsibility of another defendant. The point is possibly more important in terms of the value of trials for developing an understanding of the history of the conflicts and the structure of crimes committed. If the trials are conducted well, then the conflict between the defence positions will contribute to creating a fuller picture of who was doing the planning, who was doing the supplying, and who was in charge.

A more complete picture

It is in this area that the Hadžić trial may prove to be very informative as well. Goran Hadžić is in most respects a minor figure: a former warehouse manager who became a local paramilitary commander and briefly occupied the presidency of the Serb para-state in Croatia, he enjoys no cult of heroic patriotism but is rather generally regarded as a nonentity who used violent conflict and political connections to amass influence and wealth. But the associations he made in amassing that benefit might prove to be centrally important to some more crucial trials - in particular, to the ongoing trial of Jovica Stanišić.

The shadowy Stanišić (sent to the ICTY in 2003) is the former head of the Serbian state-security service, which supplied, commanded and controlled the Serb paramilitary forces in the conflicts in Croatia and Bosnia-Herzegovina. Among these forces were the notorious Red Berets who carried out the assassination of prime minister Zoran Djindjić; the Scorpions who carried out massacres in Bosnia-Herzegovina and Kosovo; and the Tigers (under the command of Željko Ražnatović [Arkan] who in addition to massacres controlled much of the theft and smuggling in the conflict zones. The role of state security, and of Stanišić in particular, may well be the key to understanding how violence was organised in the conflicts of the 1990s and just how big a part Serbian state institutions played in its commission.

Jovica Stanišić has, predictably, offered the defence that he had no control over politicians and paramilitaries in Bosnia and Croatia. It was the testimony of Hadžić’s late predecessor Milan Babić (who committed suicide in 2006) that established much of what the ICTY knows about the role of state security in the conflicts; now, Hadžić may complete the picture by offering an account of how his forces were supported and commanded.

But the question of support and control could spread more widely than that. In May 2011, the former Croatian interior minister Josip Boljkovac gave an interview to Slobodna Dalmacija in which he described Hadžić as “part of the network of people from the Croat and Serb side whose job was to provoke and intensify violent conflicts, and in that role he cooperated with the Croatian authorities”. The charge conflicts with most popular understandings of the genesis of the conflict in 1991. If it were to be tested at trial it could make a mighty contribution to understanding of how political forces came together to produce violence in 1991, and who colluded with whom.

The last arrests of people charged by the ICTY might or might not move Serbia much closer to its goal of joining the European Union. But the trials that develop out of them - especially considering the way the interests of the two newest defendants conflict with the interests of other defendants - just might help the ICTY realise a part of its potential: that is, to generate a complete and well-documented picture of the crimes committed and how they came about.

There is always the chance that the trials of Ratko Mladić and Goran Hadžić could be derailed by distraction and dodgy legal work, as happened in some earlier cases. But the fact that both defendants appear to have engaged competent counsel makes the prospects look slightly better.