On mitigation – the Karadžić judgement

Since the Karadžić judgement was announced last week, much attention has focused on two key points. Firstly, the court’s finding that genocidal intent was not the only reasonable inference from the evidence presented in seven municipalities (Prijedor, Sanski Most, Ključ, Zvornik, Vlasenica, Bratunac and Foča). Secondly, the sentence of 40 years imprisonment. This short entry focuses on the latter and questions the extent to which his “withdrawal from political life” is a secure basis for mitigation.

In reaching a sentence, the judges are required to focus on the demands of retributive justice and deterrence, and to a far lesser extent, rehabilitation. Retribution is required as an expression of outrage, but is limited to a punishment that is ‘just and appropriate’ in light of the gravity of offences and aggravating and mitigating factors.

In accounting for aggravating factors, the court noted that Karadžić’s leadership, as the head of the Serbian Democratic Party and political leader of the emerging Republika Srpska, was already intrinsic to the prosecution case against him. As such this could not be taken as a further aggravating factor (para 6052).

In terms of mitigation, the judges took into account a range of factors. Some of these are relatively uncontentious. Karadžić has cooperated with the court, and his case can be contrasted to those of Milošević and Šešelj who regularly challenged the authority of the court (para 6058). Likewise, his age and lack of prior convictions were recognised (para 6061-2), although the relative weight of these factors in respect of gravity of the crimes may be minimal. Two other factors were accounted for in mitigation.

Karadžić’s expressions of regret and sympathy, while not necessarily reaching the level of ‘remorse’, was a relevant factor in the chamber’s sentencing decision (para 6059). The expressions of regret are accompanied with an admission of moral responsibility, if not criminal responsibility in Karadžić’s Final Brief (para 3428).

The judges spent some time contemplating Karadžić’s resignation from political office and withdrawal from public life. The positive impact of this, rather than the defendant’s rationale for doing so, merited mitigation (6054-57). The fact of the defendant’s withdrawal is supported by evidence in the form of testimony from Momcilo Krajišnik and a statement signed by other leading SDS and Republika Srpska politicians. The positive impact is assumed, rather than evidenced (para 6057).

The extent to which the defendant’s rationale for withdrawal irrelevant is questionable. By the end of 1995, two ICTY indictments had been raised against Karadžić and Mladić. The court opted not to take a position on the contentious Holbrooke agreement on non-prosecution in exchange for withdrawal and a range of evidence presented by the defence in relation to this (see Defence Final Brief 3379-3397). In absence of a finding here, it is difficult to take a firm position on whether Karadžić had entered into an agreement for the benefit of peace in BiH or had simply gone in to hiding in order to evade arrest.

Regardless of motivation, the nature of his withdrawal and the contribution of this to peace might be challenged on an empirical basis. As noted, this contribution was assumed rather than evidenced, and in the absence of the counterfactual case, taking a definitive position on the matter is hardly possible. This calls for a more explicit statement of reasoning by the court. The extent to which Karadžić actually withdrew and the timing of any withdrawal are matters which might be usefully tested against a factual basis.

That basis may lie in the records of the Office of the High Representative. On the 30^th of June 2004, Paddy Ashdown, as the High Representative in Bosnia and Herzegovina, issued a series of decisions blocking the accounts of the SDS and excluding a number of party officials and others from political and public office.

In doing so, he accused the SDS of “clinging to vestiges (and figures) of its bankrupt past” in its “concerted will to obstruct peace implementation” and includes the failure to arrest ICTY indictees or to tackle cultures and structures which facilitate support to those indictees, including Karadžić, as “inimical to stability and the rule of law” and thus, again obstructing the peace process.

In the cases of three public officials, Zoran Petrić and Mile Pejčić of the Ministry of Interior, and Savo Krunić of the Forestry Authority, the removal was justified with specific reference to material and other forms of support to Karadžić. Evidence included a letter from Karadžić showing he “was in regular contact with and has received assistance from the SDS”.

The association of Karadžić with structures obstructing peace was not considered in the courts final judgement. The weight given to Karadžić’s withdrawal from public life by the judges is not clear, but until at least 2004 the empirical basis for that mitigating factor is questionable. 

Paragraph references are to the judgement, unless otherwise stated.