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.

Antonio Cassese 1937 – 2011: Obituary

Anna Marie Brennan

Antonio Cassese, a prominent lawyer and academic, who has often been described as the “father of international criminal justice” passed away on Saturday at his home in Florence, Italy after a lengthy battle with cancer.

Judge Cassese developed a branch of public international law that had remained quiescent in the aftermath of the Nuremberg and Tokyo trials. He established the Journal of International Criminal Justice and the European Journal of International Law and also served as the Editor-in-Chief of the Oxford Companion to International Criminal Justice. He was Professor of International Law at the University of Florence from 1975 until 2008 and was also Professor of Law at the European University Institute in Italy from 1987 until 1993.

Until just a couple of weeks ago, Antonio Cassese had been the President of the Special Tribunal for Lebanon (STL) and had previously been the first ever President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which was established in the aftermath of atrocities in the Balkans in the early 1990s. He has been succeeded at the STL by David Baragwanath who has stated that “the tragedy of Nino’s (Cassese) departure is beyond words” and that Cassese’s “towering ability as a jurist and a statesman was equalled by the immense personal warmth and humanity which made him our dear friend.”

Cassese became President of the ICTY in 1993 and led the way in developing rules that would guide the tribunal which have since served as a model for the foundation of other international tribunals such as the International Criminal Court and the International Criminal Tribunal for Rwanda. In particular, the Appeals Chamber over which he presided delivered a pivotal decision in the Tadic Jurisdictional Decision in 1995 which completely changed the basic principles of international criminal law by providing that war crimes could be punished where committed during a non-international armed conflict. The judgment also provided that crimes against humanity could be perpetrated during peacetime. Despite being contentious at the time, both principles were later accepted when the Rome Statute of the International Criminal Court was adopted in 1998.

Cassese also led the United Nations Commission of Inquiry on Darfur which eventually led to the UN Security Council requesting the International Criminal Court to initiate an investigation into alleged atrocities committed in the area. This investigation ultimately led the International Criminal Court to issue an arrest warrant for several government officials in Sudan most notably the president, Omar Hassan al-Bashir. He also served as an independent expert to review judicial efficacy at the Special Court for Sierra Leone. The current Secretary General of the United Nations, Ban Ki-moon, released a press statement at the weekend describing Cassese as a “giant of international law” as well as “an exceptionally charming and warm human being who courageously stood up for justice, for human rights and for humanity.”

Antonio Cassese is survived by his wife Sylvia, their son and daughter and two grandchildren.

May he rest in peace.

Panel 1: Responding to Sexual Violence – Recent Developments in International Law

The first panel session focused on the role played by International Law, and in particular, International Tribunals, in responding to Sexual Violence in conflicts. The session provided both an account of some positive developments in the area as well as problems, in respect of law (both International and domestic), and cultural and political challenges in responding to sexual violence.
The first speaker, Dr Kelly Askin, opened the session with an account of how the past 15 years has the recognition of Gender Based Violence (GBV) as a human rights issue. Taking the conference through the key court decisions from the International Criminal Tribunals for the former Yugoslavia and Rwanda, she informed the conference that the cases have established that GBV can be prosecuted as a war crime even in cases of defendants who were “in charge” rather than directly involved in the crimes. However, setting the tone for the rest of the speakers, Dr Askin went on to note the many missed opportunities and acquittals, and the fact that it takes sustained pressure for these crimes to be successfully prosecuted in practice. She also noted that now that the International Tribunals had set down the jurisprudence, it was time for the domestic courts to “step up” and do more to prosecute GBV.
The downbeat tone was picked up by the next speaker, Professor Doris Buss, who presented findings on the legacy of the International Criminal Tribunal for Rwanda. Reporting on the “bleak” record of the Tribunal she noted that there was a very low success rate in prosecuting sexual offences. Problems were found at all points in the system – investigations, prosecution and trials. Professor Buss noted that whilst in International Law rape had become visible as a mass crime, it remained almost invisible at the point of the individual; and whilst International Law has developed significantly in relation to prosecuting GBV, the institutional and the cultural problems continue.
The final speaker, Amira Khair, presented a disturbing account of the practical experience of working with women victims of sexual violence in Sudan. The experience made clear how Sudanese law is not a solution to GBV, but is in fact part of the problem. The law on rape exposes the victims to further abuse, as it requires four male witnesses to establish a victim did not consent to the sexual act. Without these witnesses there is a danger that the victim could be prosecuted for adultery because she had sex outside marriage. The law therefore does not provide the space for victims to seek legal protection and/or justice; something reinforced by the cultural context of not speaking out in relation to sex.
The session concluded that International Tribunals using International Law were only part of the way in which rape victims can obtain justice. Local courts, truth and reconciliation commissions, reparations, all had a part to play in tackling GBV after a conflict. It also took courage on the part of the legal players; which in itself was a telling issue as Professor Buss concluded “How did we get to the point where it needed courage to convict someone for rape?”