The Last ICTY Trial
| Author | Brad Flanery |
| Position | SMU Dedman School of Law in Dallas, Texas |
| Pages | 75-93 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2020 e Institute for Migrant Rights Press
thE last iCtY trial
An AnAlysis of thE rAtko mlAdić triAl And
thE strugglE to rEAch A guilty VErdict for
pErpEtrAtors of gEnocidE
Brady Flanery
SMU Dedman School of Law in Dallas, Texas
E-mail: banery@mail.smu.edu
e international legal community’s denition of genocide is stringent and in-
hibits convictions of genocide. e denition of genocide established by the 1948
Geneva Conventions has three signicant elements for conviction: intent to de-
stroy, proportion of victims killed, and protected groups of people. In this article,
the author argues that this denition is too restrictive in its application. Some of
the specic crimes of the Bosnian Genocide in the 1990s do not qualify as geno-
cide according to the Geneva Convention. is denition has three signicant
restrictions: 1) the perpetrators must have the intent to destroy a group of people
or have the knowledge that their actions could destroy a group; 2) the number of
people killed must be a substantial number compared to the amount available of
a qualifying group; 3) the denition does not consider a political group as a pro-
tected group. is article analyses the genocide conviction of Ratko Mladić, the
primary perpetrator of the 1995 Bosnian Genocide, by the International Crim-
inal Tribunal for the former Yugoslavia (ICTY). is article examines Mladić’s
ICTY trial and how the Court interpreted each element. In the end, it concludes,
despite the correct ultimate decision by the ICTY, that the international legal
community’s denition of genocide is awed and prevents some genocide victims
from receiving justice.
Keywords: International Criminal Law, International Justice, Genocide, War Crimes,
Human Rights.
VII Indonesian Journal of International & Comparative Law 47-65 (January 2020)
76
Flanery
INTRODUCTION
In December 2017, twenty-four years aer its creation, the Internation-
al Criminal Tribunal for the former Yugoslavia (ICTY) ceased its oper-
ations. e ICTY was created in 1993 during the collapse of Yugoslavia
and subsequent Balkan wars to prosecute war criminals on all sides of
the conict.1 e trial of Ratko Mladić, the last case tried by the ICTY,
was the most signicant and redeeming case of the ICTY’s twenty-four-
year span; Mladić was indicted in July 1995 but his trial did not begin
until 2012 and nally concluded in November 2017.2 Mladić’s criminal
acts in July 1995 sent shockwaves throughout the world as the interna-
tional community discovered that, in his capacity as the Commander
of the Bosnian Serb Army, or the army for the Republika Srpska (VRS),
he had committed the rst genocide in Europe since the Holocaust.
Despite multiple attempts and successes to exterminate a group of peo-
ple based on their ethnicity or religion since the Holocaust, most peo-
ple consider the Holocaust the world’s last genocide.3 For example, in
2015, a poll in the U.K. found that fewer than ve percent of eleven to
sixteen-year-olds were aware of the Bosnian genocide.4
e ICTY charged Mladić with two counts of genocide, ve counts
of crimes against humanity, and four counts of violations of the laws or
customs of war. 5 is article will specically examine the two counts of
genocide. e rst count was committed by VRS during the early stage
of the war and concerned the deportation, detention, and targeting
of minority groups, specically the Bosnian and Croat Muslims.6 e
second count concerned the specic separation and mass executions of
Muslim men and boys in the town of Srebrenica on 12-13 July 1995.7
e Chamber’s verdict in Mladić’s case has the potential to
inuence future prosecutions of genocide because the Chamber’s
analysis of genocide goes beyond the denition of genocide set forth in
the 1948 Convention on the Prevention and Punishment of Genocide
(Genocide Convention) because it requires that the part of the group
destroyed is substantial in comparison to the group as a whole.8 e
7. Prosecutor v. Karadzić & Mladić, IT-95-18-I, Indictment (Nov 14, 1995),
available at http://www.icty.org/x/cases/mladic/ind/en/kar-ii951116e.pdf.
8. William A. Schabas, Convention on the Prevention and Punishment of the Crime
of Genocide, A L I’ L, http://legal.un.org/avl/ha/
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