This guest blog by Honor Tuohy (LLM International Human Rights Law and Public Policy, 2019-20) examines the re-written judgment of Prosecutor v Karadžic [ICTY, 2016] undertaken by Celestine Greenwood for the Feminist Judgments in International Law project.
‘Feminist Judgments in International Law’ is a part of an ongoing series of books whereby academics take the previous judgments from cases and present an alternative judgment. This judgment is reached through applying a feminist methodology to the details of the case as presented originally, and using the law as it stood at the time of the case. This review focuses on a particular chapter within that book written by the barrister, Greenwood, based at the American University Washington College of Law. The International Criminal Tribunal for the former Yugoslavia (ICTY) has led to the prosecution of people involved in the Bosnian War for genocide. One of these cases in particular is the Prosecution v Kardžić. An issue being discussed in this book chapter is in relation to the judgment of Kardžić in 2016 which Greenwood understands as follows: ‘[a]lthough the Tribunal found that members of ‘protected groups’ had been killed and subjected to serious bodily or mental harm, thereby satisfying the actus reus of the offence of genocide in two respects, the Tribunal did not find sufficient evidence to infer that those acts were carried out with the intention to destroy the groups in question’.
Greenwood leads us through the evidence presented at the trial while shifting the focus of interpretation and grounding this shift through the inclusion of precedent from the International Criminal Tribunal for Rwanda (ICTR) as well as Tolimir (which was a case heard at an earlier point during the ICTY). In this way, Greenwood points to the particular precedent of the ICTR which could have been used to argue for Kardžić’s guilt in terms of genocide on the first count in the Municipalities:
- In the Akayesu (ICTR) case she notes that the word ‘destroy’ in the definition of genocide, (i.e. ‘Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’) was explained as ‘equating to ruining someone emotionally or spiritually’, and that this ‘interpretation has particular resonance in cases of allegations of rape tried at the international tribunal level’.
- In the same ICTR case (Akayesu), she quoted that ‘sexual violence was a step in the process of destruction of the Tutsi group – destruction of the spirit, of the will to live, and of life itself’ and in her judgment, ‘this precedent is relevant and applicable when considering the Prosecution case that genocide was committed in the Municipalities by the causing of serious bodily or mental harm to members of the group (Article 4(2)(b)) and, when considering ‘other culpable acts’’.
- The Akayesu case (ICTR) held that ‘… deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.’ Greenwood refers to this as genocide in ‘a form of ‘slow death’’. The trial had concluded that the conditions within which the ‘detainees’ were kept have ‘had serious continuing and long-term effects on some of those who survived’. The conditions included ‘severe overcrowding’, ‘stifling heat and lack of ventilation’, ‘insufficient access to adequate water and food’, as well as the presence of ‘dysentery’, for example. The phrase ‘slow death’ was one used in Tolimir, and Greenwood questions the wisdom of not amounting ‘these conditions of living’ to a ‘slow death’, and questions how ‘inhumane’ conditions, which ‘must, ipso facto, have been intended to result in either slow and agonising death or permanent physical and/or psychological damage’ could not therefore show that ‘Bosnian Muslims and Croats held in detention centres… were deliberately subjected to conditions of life calculated to bring about the physical destruction, in whole or in part, of the ethnic groups of which they are members’.
- Greenwood explains how sexual violence (as seen in Akayesu) is ‘a step in the process of destruction of the Bosnian Muslims and Bosnian Croats’ which was achieved through ‘[o]stracisation of raped women, forcible impregnation, and permanent injury resulting in the inability to have children’ showing that ‘[r]ape was an act through which power, ownership, domination and control of one group was seized and demonstrated by the other’. Greenwood refers to how rape can be used as a weapon due to its ‘communicative effect’ which can be understood through looking at ‘inherent and intuitive understanding of these norms, both at the societal and individual level’ which ‘ensures that members of the perpetrator group understand that the rape of women from another group will communicate various significant and potentially destructive messages’.
Although Karadžić was found guilty of genocide which happened in Srebenica in 1995, he was ‘acquitted… of genocide in the seven named ‘Municipalities’ of Bosnia Herzegovina during the period from the end of March to the end of December 1992’. Greenwood’s judgment as a result of including the above-mentioned precedent (among other points) led to the conclusion ‘beyond reasonable doubt, that… (ii) The Bosnian Muslim groups of [the Municipalities] were also the victims of genocide… [a]nd that (iv) Radovan Karadžić was the architect and orchestrator of these genocides. He led his people, the Bosnian Serbs, in this orgy of extermination, depravity and cruelty, having, at all material times, the intention to destroy these groups in whole or in part’.
There are many aspects that this re-written judgment (and many more judgments to be found in this collection) can offer the legal community but in this particular instance this re-written judgment helps to point to ‘the ways in which grave harms done to women and girls, particularly in the context of conflict, are marginalised’. Greenwood is clear that ‘the law has the power, and duty, to punish those who have committed crimes, to send a message to the individual offender and to wider society’. As the ICTY did not use the judgments from the ICTR trials to build a precedent in relation to the interpretations of the use of rape and sexual violence as weapons of war, they have both ‘failed to label accurately the wrongs suffered by many, mostly women and girls’ and ignored ‘offences committed against women during conflict’. The re-written judgment of this trial is hopefully just the beginning of a new way of approaching and understanding judgments of trials – as potentially limited due to the assumptions of the system they are created within. What this means is that judges will need to become increasingly aware of the assumptions and limitations that lay hidden within their work. Although this may, at first, appear to weaken the international legal system as it will need to point directly to its flaws, it has the potential to eventually produce judgments that are far more robust and reflective of a judicial system driven by an understanding that judicial practice must always be aiming towards the achievement of a judicial idealism.
 Prosecutor v Kardžić (Judgment) ICTY-95-5/18-T (24 March 2016).
 ibid; Celestine Greenwood, ‘Prosecutor v Radovan Kardžić: Author’s Note’ in Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart Publishing 2019) 450.
 Prosecutor v Tolimir (Appeal Judgment) ICTY-05-88/2-A (8 April 2015) <https://www.icty.org/x/cases/tolimir/cis/en/cis_tolimir_en.pdf>
 Celestine Greenwood, ‘Prosecutor v Radovan Kardžić: Judgment: Partly Dissenting Opinion of Judge Celestine Greenwood’ in Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart Publishing 2019) 456, para. 9.
 ibid; Akayesu, Trial Judgment, para. 732.
 Greenwood (n 4); Akayesu (n 5) para. 505.
 Greenwood (n 4) para. 22.
 ibid 459-460, para. 23.
 Greenwood (n 4) para. 2.
 ibid 460, para. 24.
 ibid 459, para. 21.
 ibid 464, para.43.
 ibid paras. 43-44.
 These Municipalities were seven areas under the leadership of Karadžić: Bratunac, Foča, Ključ, Prijedor, Sanski Most, Vlasenica and Zvornik.
 Greenwood (n 2) 447.
 Greenwood (n 4) 454, para. 2.
 Loveday Hodson and Troy Lavers, ‘Feminist Judgments in International Law: An Introduction’ in Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart Publishing 2019) 14.
 Greenwood (n 2) 451.
 Greenwood (n 2) 451.