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. 

"The line of responsibility would have to come back to him" Andy Aitchison

Bosnia’s EU Candidacy Cannot be Sustained by Minimal Internal Compromises

This entry was originally posted on 15 February 2016 on the European Futures website.
Bosnia's formal application for EU membership, received today, is predicated on a new and untested framework for the country's political entities to cooperate with each other. Looking at the EU and OHR's earlier attempts to reform the police, I argue that, if leaders continue striking political agreements that barely meet the minimum required by international actors, the country will not resolve the serious challenges it faces.

Bosnia's application to the EU

The announcement that Bosnia and Herzegovina (BiH) would submit an application for candidate status to the EU today, 15 February, has been greeted with a degree of surprise. The agreement of a coordination mechanism within BiH, a precondition for candidacy, had not previously been publicly disclosed.
The creation of a framework for coordination on paper, the last-minute claims of achieving an apparent minimum for the next step on the European path and a backlash from key domestic political actors recall the fate of an earlier, EU-driven, attempt to reform the country's police. These previous events present a cautionary tale for optimists, a rare breed in contemporary BiH.

The policing precedent

In the summer of 2005, there were signs of optimism about BiH's European future, and yet clouds could be seen gathering on the horizon. At that time, inter-party negotiations were taking place over police reforms, including proposed policing territories defined by technical criteria and disregarding existing internal political boundaries within BiH.
A participant from the Office of the High Representative (OHR) described his amazement at hearing Bosnian delegates saying 'this is something the European Union wants… let’s get on with it'. This was seen as a big step. When the OHR was shifting to less forceful intervention, it was presented as evidence of what could be achieved when Brussels was leading the agenda.
But ahead of negotiations, the main parties of government in Republika Srpska (RS), the Serb Democratic Party and the Party of Democratic Progress, had been clear that they would not accept any police boundaries which did not align with those of their entity. During the negotiations, they showed signs of pulling out, and likewise their main opposition in RS, the Alliance of Independent Social Democrats, also signalled coolness towards the negotiations.
In multi-party negotiations, and at a point when power in RS was shifting, these parties all represented potential veto players. RS parties anticipated continued electoral support from positioning themselves as protectors of the power and status of the Serb entity.
A clear rejection of cross-entity policing areas in the RS People's Assembly followed, but agreement on policing was a precondition for opening negotiations on a Stabilisation and Association Agreement (SAA), a key milestone on the path to EU candidacy. After missing initial deadlines, Bosnia’s various parliaments came to a limited agreement on policing, but parked the issue of territorial boundaries with an implementation directorate. The minimum requirements of the SAA had been met, but the most difficult political issues had been set aside, to be resolved (or not) later.
More than ten years on, police boundaries are not defined by technical criteria, and continue to be tied to the political structures of entity, canton and district.

Unresolved issues and local dissent

Following on from the announcement of the candidacy application and the coordination mechanism, the RS President, Prime Minister and Government have all issued statements which question the authority of the decision on the mechanism. This alone would suggest that the EU should exercise extreme caution before entering a process where a weak agreement on paper proves inadequate to the task of coordination.
Beyond this, major unresolved issues continue to suggest a lack of capacity, will or some combination of the two, to prioritise EU conditions over the concerns of domestic politicians. The incompatibility of the BiH constitution with the European Convention on Human Rights, was first noted by the Venice Commission in 2005, and was reinforced by the Sejdić-Finci and Zornić judgements of 2009 and 2014 respectively.
The ongoing exclusion of ethnic 'others' from key political offices in BiH continues. Likewise, a census conducted in 2013, the subject of extended political negotiations from at least 2008, has yet to be published.
The police reform negotiations of 2005 seem long forgotten now, but provide a useful precedent. In a system as fragmented and complex as BiH, apparent achievement of the minimum thresholds for progress is meaningless in absence of serious engagement with key veto players and their driving motivations.

Notes

The original analysis of police reform can be found in chapter four of Making the Transition: International Intervention, State-Building and Criminal Justice Reform in Bosnia and Herzegovina.
Andy tweets @Andy8chi
The entry here is reproduced with kind permission from European Futures.