Review: Celestine Greenwood’s Re-written Judgment of Prosecutor v Karadžić

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.[1] 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’.[2]

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[3] (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:

  1. 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’.[4]
  • 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’’.[5]
  • 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.’[6] Greenwood refers to this as genocide in ‘a form of ‘slow death’’.[7] 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’.[8] 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.[9] 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’[10] 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’.[11]
  • 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’.[12] 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’.[13]

Although Karadžić was found guilty of genocide which happened in Srebenica in 1995, he was ‘acquitted… of genocide in the seven named ‘Municipalities’[14] of Bosnia Herzegovina during the period from the end of March to the end of December 1992’.[15] 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’.[16]

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’.[17] 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’.[18] 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’.[19] 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.


[1] Prosecutor v Kardžić (Judgment) ICTY-95-5/18-T (24 March 2016).

[2] 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.

[3] 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>

[4] 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.

[5] ibid; Akayesu, Trial Judgment, para. 732.

[6] Greenwood (n 4); Akayesu (n 5) para. 505.

[7] Greenwood (n 4) para. 22.

[8] ibid 459-460, para. 23.

[9] Greenwood (n 4) para. 2.

[10] ibid 460, para. 24.

[11] ibid 459, para. 21.

[12] ibid 464, para.43.

[13] ibid paras. 43-44.

[14] These Municipalities were seven areas under the leadership of Karadžić: Bratunac, Foča, Ključ, Prijedor, Sanski Most, Vlasenica and Zvornik.

[15] Greenwood (n 2) 447.

[16] Greenwood (n 4) 454, para. 2.

[17] 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.

[18] Greenwood (n 2) 451.

[19] Greenwood (n 2) 451.

Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

We are delighted to welcome this guest post from Dr Catherine O’Rourke, Ulster University Transitional Justice Institute.

Catherine O'RourkeDr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

In summer 2013, in response to the Department of Health, Social Services, and Public Safety consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’, I blogged on the need for local human rights organisations to ‘step-up’ to defend the human rights under threat by the failure of successive governments to bring clarity to abortion law in the jurisdiction, as well as the (then) urgent threat posed by the manifold potential civil and political rights violations raised by the 2013 Draft Guidance. The context for the call to local human rights organisations, including the Northern Ireland Human Rights Commission, to begin to advocate on the access to abortion as a human rights issue reflected several years of silence and inaction in the face of clear human rights concerns presented by the legal status quo. Specifically, the call reflected the failure of any local human rights organisation to support the request for an inquiry to be conducted by the CEDAW Committee under the Convention’s Optional Protocol into access to abortion in Northern Ireland.

Since summer 2013, much has changed. While I was writing my call for the local human rights community to ‘step up’ on abortion and human rights in Northern Ireland, the Committee on the Administration of Justice, Amnesty International and the Northern Ireland Human Rights Commission were all preparing responses to the consultation on the 2013 draft Guidance, emphasizing the manifold human rights compliance concerns raised therein. NI Abortion AmnestyAmnesty International has made reform to abortion law in Northern Ireland one of its priorities in its ‘My Body, My Rights’ campaign, involving inter alia the excellent report ‘Northern Ireland: Barriers to Accessing Abortion Services’. The Committee on the Administration of Justice has started to include access to abortion as a human rights concern in its 2015 shadow reporting to CESCR and to the Human Rights Committee. This marked an important new departure for a human rights organisation that had not previously raised the issue of abortion even in its shadow reporting to the CEDAW Committee.

NIHRCThe transformation of the approach of the Northern Ireland Human Rights Commission to abortion is arguably the most notable of all. In its 2008 Guidance to the Secretary of State on the proposed content for a Bill of Rights for Northern Ireland, the Human Rights Commission included only one reference to abortion:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added)

In 2015, the Commission initiated the judicial review proceedings that were to ultimately prove successful in last week’s High Court decision, determining that Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, is incompatible with UK human rights legislation. The proceedings included also a third party written intervention from the Amnesty International Belfast office, in addition to Alliance for Choice, the Family Planning Association, Sarah Ewart and a number of anti-choice organisations.

Why the change and where to from here? When considered within the broader context of human rights advocacy in Northern Ireland, the significance of the litigation and its outcome is even more apparent. Local developments in human rights advocacy in Northern Ireland reflect – and were no doubt reinforced by – important legal developments in the European Court of Human Rights jurisprudence on access to abortion since Tysiac v Poland, and developed most notably through A,B,C v Ireland, RR v Poland and P and S v Poland. For rights issues that are locally contentious, such as abortion, the clear articulation of regional human rights obligations can be helpful in emboldening and providing cover for local human rights organisations to take on such issues. (There are inevitably limitations, however, in a human rights approach that articulates right of access to abortion in limited circumstances as a matter of private and family life, but not as a matter of gender equality.) The importance of the international is also evident from the central role of Amnesty International’s Belfast office to the litigation and surrounding press and public affairs activity. Amnesty International adopted the ‘My Body, My Rights’ campaign at a global level and, since then, has pursued a very active local campaign on abortion and human rights, in coordination with local pro-choice groups and constituencies. Arguably important also has been the diversification of human rights advocacy more broadly in the jurisdiction. From the traditional almost exclusive focus on conflict and post-conflict accountability issues (which I document in chapter 3 of my book, Gender Politics in Transitional Justice), contemporary human rights advocacy in Northern Ireland now takes in a broad swathe of issues from marriage equality to mental health and many others.

Taken together, these international, regional and locally-led developments have created a very changed context for pro-choice advocacy in Northern Ireland. Whereas human rights and pro-choice organisations traditionally maintained separate spheres of activity, with little cooperation or interface, last week’s High Court judgment evidences the potential effectiveness of coordinated strategies across human rights and pro-choice groups. Looking forward, as we consider strategies for translating the High Court judgment into progressive legal change, the particular skills of the human rights community in activating international scrutiny, combined with the critical role of pro-choice groups in continuing the articulate the essential equality arguments in working for social change, offer reasons for optimism.