Radovan Karadzic’s sentence of 40 years' imprisonment is in stark contrast to the life terms imposed on others, said Geoffrey Nice, who was a deputy prosecutor at the trial of Slobodan Milosevic in The Hague, in an interview with RFE/RL.
“Living victims of these horrible crimes would probably each think that one death of a loved one would merit life imprisonment. But the court, in imposing a fixed term, seems to have no understanding of how negative is the consequence for victims -and for the region as a whole - of imposing sentences of this kind that make no sense to them.
Maybe the time has come when some aspect of sentencing should be taken away from the discretion of the judges for particularly serious crimes. For such grave crimes - once established to have been committed - life sentences could be imposed automatically,” emphasized Nice.
RFE: Many people, particularly in Bosnia-Herzegovina, are disappointed with the 40-year sentence given to Karadzic after he was found guilty of genocide in Srebrenica. His close associate, Zdravko Tolimir, was sentenced to life on similar charges. Doesn't Karadzic deserve life imprisonment as well?
Nice: I’ll come to that in just a second because I would like first all of to observe that not finding genocide for 1992-3 in seven municipalities is, some would say, unfortunate. It may be reviewed on appeal. But, it is not an unsurprising decision given that the judges would have been making a wholly new departure from any previous ICTY or ICJ decisions in finding genocide for those municipalities.
Dealing with your specific question, the summary judgment reads satisfactorily - from a lawyers’ point of view - up and until the moment when it deals with genocide at Srebrenica, for which, along with all other crimes proved, the 40 year term was imposed.
It almost seems, from the way the judgment has been written, that there was some reluctance by the court to spell out in terms that it was genocide; the word was barely used in dealing with the conviction for count 2 until the very end when the sentence was imposed
It almost seems, from the way the judgment has been written, that there was some reluctance by the court to spell out in terms that it was genocide; the word was barely used in dealing with the conviction for count 2 until the very end when the sentence was imposed. Curiously, before the sentence was imposed, there was reference to mitigation following a rather curious reference to the Holbrook agreement that was said to have been made between Holbrook and Karadzic. There followed a reference to it being a mitigating factor that Karadzic resigned from the office in 1996.
I find that it hard to accept that there is any mitigation in a man’s resignation from the very office in which he made decisions leading to thousands of criminal killings and after which he went into hiding. This is a man who has never acknowledged responsibility, who kept open the issue of his quilt for so many years that those seeking a judgment in order to settle their lives – (I mean living victims and the relatives and friends of those killed) – have had to wait.
I simply don’t understand how it was said to be a mitigating factor.
This 40 year sentence could result - from rough calculations I have made about time served and time-off for good behavior –in Karadzic being returned to leave in free society, should he survive, by the time he is 90 years old.
RFE: Even some people from the Bosniak side said that, although Karadzic deserves life imprisonment, this sentence is virtually the same, given Karadzic’s age. But, others suggest that symbolically, and as a matter of principle, there is a huge difference between a 40-year sentence and a life sentence.
Nice: There are practical and policy issues here. Practically, let us assume that he would serve two thirds of the sentence imposed less time he spent in custody. It means he could serve less than 20 years from now.
That is a practical reality.
As of matter of principle, it is extremely important, for those who think sentences for crime bring benefits to society as a whole, to draw a distinction between life imprisonment and imprisonment for any fixed term.
This court should have as its priority the interest of victims. Yet the court when sentencing only really considers other objectives of retribution and deterrence. Victims’ interests may be included in the way retribution is reflected in punishment imposed, but they are not otherwise identified as part of the sentencing process.
People waited 21 years to have some resolution achieved by a sentence against Karadzic and other high office holders from RS and VRS. Unsurprisingly, the verdict and sentence has left very many of those people in a state of some distress and despair; and, of course, they are hugely disappointed in the court.
RFE: What are the reasons for the Hague tribunal's decision not to sentence Karadzic to life and to clear him of charges for genocide in seven other municipalities? If Karadzic had been found guilty of genocide in this case, would have it implied a possible reversal in the matter of Bosnia’s genocide charge against Serbia, which was rejected by the International Court for Justice?
Judge Kwon was a judge on the Milosevic case and his assessment of evidence was different from that of his fellow judges who found, after conclusion of the Prosecution case, that there was sufficient evidence to go on with the genocide count against Milosevic. Judge Kwon was unable to draw the required inference about Milosevic’s genocidal mental state and only found sufficient evidence to go ahead on different modes of culpability for genocide. So, to some extent you can see consistency in judge Kwon’s reaction to and assessment of evidence.
Nice: I simply don’t know and can’t responsibly comment on what influences, if any, may have been at work additional to the assessment of evidence made by the judges’ in respect of count 1 about genocide in these municipalities. I can observe that Judge Kwon was a judge on the Milosevic case and his assessment of evidence was different from that of his fellow judges who found, after conclusion of the Prosecution case, that there was sufficient evidence to go on with the genocide count against Milosevic. Judge Kwon was unable to draw the required inference about Milosevic’s genocidal mental state and only found sufficient evidence to go ahead on different modes of culpability for genocide. So, to some extent you can see consistency in judge Kwon’s reaction to and assessment of evidence.
Your second point is well made. Probably the only way now possible for those interested in and on behalf of Bosnian victims to achieve a satisfactory result about genocide in 1992-3, is to seek revision of the International Court of Justice’s decision. Bosnia has got only few months left for the Bosnian government to take the decision to seek revision using arguments to show it was state against state commission of genocide by Serbia against Bosnia; and it will need to make a case for genocide in 1992/3 as well as later in 1995. But the government in Sarajevo seems reluctant, despite all advice it has received, to initiate revision. It must understand that if it doesn’t initiate revision, the Bosnian Muslim component of BiH may regard the government as failing in its duty to respect their suffering and loss.
RFE: What can be expected next? Both sides will apparently appeal. Can the court reverse its sentence and send Karadzic to prison for life? In addition, can the court reverse its acquittal of Karadzic on genocide charges in the seven municipalities?
Nice: I certainly expect both sides to appeal and the prosecution may be regarded as having more prospect of success in appealing the 40 year sentence than the 1992-3 genocide acquittal.
RFE: If Karadzic is acquitted on genocide in the seven municipalities, will the same approach be applied in Ratko Mladic's case too?
I think that it is immensely unfortunate that in all these trials the judges operate in very remote circumstances. They have not been to the region much or at all
Nice: I’m not sure. It’s a different trial chamber. However, the reactions to Karadzic’s sentence may have some effect on the attitude of judges in Mladic’s case. I think that it is immensely unfortunate that in all these trials the judges operate in very remote circumstances. They have not been to the region much or at all. It is not their fault, but they are disabled by the adversarial legal system imposed from having direct contact with victims and those who suffered. This may be one of many reasons contributing to the sense of unreality of these trials leading to judgments that do not satisfy victims even where, as in this case, the court’s overall conclusions clearly do reflect the immense suffering of thousands of people.
RFE: Serbian officials, as well as those in the Bosnian Serb entity, have rejected Karadzic's sentence as biased. Serbian Prime Minister Aleksandar Vucic said Serbia cannot permit any threat to the existence and survival of Republika Srpska.
Nice: The comments are unsurprising. If you have a justice process, then you may always have people who will forever resist the findings of that process and any effects that court findings could have on political situations. But if you ask, in general, whether it is a good thing to have a justice process, my view is that it is a good thing.
However one reality is that individuals generally - and states in particular - do not confess to what they have done that is wrong.
Yet, pretty clearly, those who were involved on the side of Karadzic in these conflicts knew from the beginning that what they were doing was criminal. There was no justification for what they did. People have started to overlook that. For Serbia and Republika Srpska to react now on the political consequences of committing grave crimes is unfortunate. It is not going to help reconciliation. I suppose it may entrench and perpetuate division and such reactions will serve as a reminder for all people to understand – lawyers and everybody else – that you cannot expect states or individuals committing grave crimes ever to confess, because individuals and states almost never do. The right to deny – and to lie when you deny – liability for crime is highly respected.
If there will be consequences for Republika Srpska arising from any court finding that its creation and continuing existence have in part or whole been the result of genocide, than other consequence that follow form such a court finding will be fair
You have to incorporate human reality if and when you decide to have court system looking at war crimes. Because the sort of consequences you identified in Belgrade and Republika Srpska today may be inevitable consequences of trying crimes such as were committed by Karadzic. My view remains that they should be tried. Serbia and Republika Srpska should be left with no doubt that they have to recognize and respect the decision of the court set up by the international community to review the criminality of what was done in these conflicts.
If there will be consequences for Republika Srpska arising from any court finding that its creation and continuing existence have in part or whole been the result of genocide, than other consequence that follow form such a court finding will be fair.
Many people have been astonished that Republika Srpska has achieved independence - to the extent it has - within Bosnia despite the way in which it was created; and if there are to be political consequences of this Karadzic judgment confirming that creation of this quasi state was by genocide, so be it.
The international community as a whole has got to realize that it’s favoring Republika Srpska’s advance towards independent existence and Serbia’s advance towards membership of the EU Europe must take account of, and face up, to how what was been done in Republika Srpska was brought bygenocide with assistance – many think although not covered in this judgment – from Serbia itself.
RFE: In conclusion, are you saying that Karadzic’s sentence won’t contribute to the reconciliation of these once-warring sides?
Nice: Criminal trials never really aim at reconciliation; it is not their true function and they never bring reconciliation as a matter of course. Their limitations point to the need for genuine openness toward reconciliation processes for which a fair, efficient justice mechanism may be an essential part of the post-conflict background. But we see no sign of openness among the once-warring parties of the former Yugoslavia. No side of the conflict is really willing to go through a genuine peace and reconciliation process – as has happened elsewhere. So we are left with criminal trial verdicts – of which this latest verdict is one of importance – and the consequences they have for individuals and the region as a whole.
