The arrest of Ratko Mladic from the perspective of international law

Alexander MEZYAEV | 01.06.2011 | 00:00

The arrest of former Serbian Commander Gen. R. Mladic on May 26 evokes serious questions of both moral and legal character. Clearly aware of the shakiness of the indictment Mladic is about to face, the global media tend to avoid touching upon the legal aspect of the Mladic case. It is an open secret that Mladic's arrest and extradition to the Hague Tribunal was set by the West as a price Belgrade was supposed to pay for the entry ticket to the EU. There was also a legal requirement, much more serious than just Serbian non-admission to the EU. In February 2007 the UN International Court of Justice passed a resolution charging Serbia with violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. One of the articles of the resolution stated that Serbia breached the conventions by not extraditing Mladic. With the predictable exception of the Serbian judge, all other judges of the Court voted in favor of the article. The resolution was essentially irrational as Mladic's wasn't arrested in Serbia, his location was unknown and the Court had no evidence that Mladic was in Serbia at that time. Nevertheless, as the failure to comply with the UN Court of Justice's decisions may result in sanctions being imposed on any country, Belgrade had to be mindful of this possibility ever since. In a stark breach of the key norms of the international law, the Hague Tribunal indicted Mladic in absentia back in July, 1996. Article 61 of the ICTY Rules of Procedure and Evidence admits a special procedure to issue international arrest warrants, when the indictment is being heard without presence of the accused or his advocate. Formally, an «advocate» – one appointed by the court, not chosen by the accused – does take part in the hearing process. In July, 1996, the Hague Tribunal decided that there was enough evidence to consider R. Karadzic and R. Mladic guilty of heinous international crimes. Subsequently this 'special procedure' allowed the ICTY to use Mladic's name as the 'evidence' against a number of other accused. At the early days of the Hague Tribunal, it adopted the legal concept of 'joint criminal enterprise'. The judicial innovation paved way to serial indictments of Serbs and was evidently invented to enable sentencing people whose personal involvement (or even awareness) in these acts could not be proven. The first version of the indictment against Mladic was endorsed back in 1995. Curiously, the judge who penned it — F. Riad, a Muslim from Egypt — was biased to the point of making the indictment more severe than originally requested by the prosecutor. An in-depth comparison between the indictment put together by the prosecution and the one amended by the judge highlights F. Riad's creative approach to the case. For example, he inserted a passage explaining that captives were executed in small groups, which — as opposed to a single mass execution — was to demonstrate that the massacre was not spontaneous but carefully planned. F. Riad also indicated a longer period of time over which the executions continued than did the prosecution in its original indictment. The case against Mladic endured several amendments. At the beginning, it was filed together with the one against Karadzic, but was detached from it when Karadzic was taken into custody in 2009. The last substantial changes in the indictment against Mladic were supposed to date back to 2002, but further details have recently surfaced. Evidently, the text was subjected to a fairly radical amendment … on May 10, coincidentally, a couple of weeks prior to the capture of Mladic. The edited indictment was approved by Alfons Ori from the Netherlands, the same judge who signed the 2002 case against Mladic. Notably, Mr. Ori is known for his toughness towards Serbs and inexplicable mercifulness to Albanians with Serbs' blood on their hands. He sentenced several Serbs, mostly from Bosnia, including former speaker of National Assembly of the Republika Srpska M. Krajisnik and acquitted e.g. R. Haradinaj, a notorious Albanian butcher. No doubt, those who want Mladic to be convicted can rely on Mr. Ori. Importantly, now Mladic is charged with four 'joint criminal enterprises' instead of one. The first one is the 'ethnic cleansing' of Croats and Muslims in Bosnia, which was qualified as genocide by the court. Other 'enterprises' were presumably 'committing acts of terror' against civilians in Sarajevo, taking UN personnel hostages in May-June, 1995, and Srebrenica 'genocide' in July 1995. The latest indictments carries 11 counts of genocide, crimes against humanity, and violations of the laws and customs of war. Close scrutiny of the indictment against Mladic reveals that it lacks elementary coherence. For example, Mladic is accused of occupying Srebrenica and killing its civilians, but judging by the alleged dates of the beginning and the end of the siege — from July 2 till July 11 – it remains unclear why did this operation take 10 days. The only plausible explanation is that Srebrenica was a heavily fortified stronghold of armed resistance or anything but a 'peaceful location'. This fact is admitted in the indictment, but all those killed during the seizure of Srebrenica are nevertheless listed as civilians by the Hague Tribunal. With this regard, frequent references to «Muslim boys and men» in the indictment may only be seen as an attempt to overstate the civilian theme, putting the objectivity of the whole act in question. Strictly speaking, even this indictment contains evidence that Mladic acted in line with the humanitarian law applicable to armed conflicts. For example, removing the population from the combat zone should be regarded as compliance with the Geneva Conventions on the Protection of Victims of (Article 50) and Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts(Article 17) rather than as a crime against civilians. The situation with figures looks no better. The 8,000 death toll recurs in former ICTY chief prosecutor Carla del Ponte's memoirs, though she certainly knows that the number in the indictment is 7,000. The media similarly keep mentioning 8,000 killed in Srebrenica. Suspiciously, the figure has a tendency to grow year by year, even though there is a bulk of evidence that these quantities have nothing to do with reality. Whenever new burial sites are discovered, the bodies inside are only of combatants. L. Simic who studied the corpses unearthed in Srebrenica presented convincing evidence to a conference on the ICTY organized by the Russian Academy of Science that all those buried — at most 1,500 people – were combatants, not civilians. At the same conference, Zh. Civikov, a scholar from Bulgaria, presented an extensive analysis of the Court's evidence in the Srebrenica case. His 2010 book 'The Key Witness' vividly exposed the ICTY forgeries concerning the alleged Srebrenica 'genocide'. There is further evidence that the charges massively brought up against Bosnia's Serbs are based on total lies. Due to obvious reasons, some of the European countries maintain legislation explicitly outlawing any arguments against facts of genocide recognized by the UN International Court, even if evidence to support the arguments is available. The range of punishments for the offense includes imprisonment, while the evidence is to be rejected without deliberation. As for the indictment against Mladic — it is an absolutely slanderous and unprofessionally written document…

 

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