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PROSECUTOR v. MLADIC
Case No. IT-09-92-I
International Criminal Tribunal for the Former Yugoslavia
Prosecution’s Fourth Amended Indictment
December 16, 2011
Judge Christoph Flugge
Judge Alphons Orie
Judge Bakone Justice Moloto
Mr. Serge Brammertz
Gender Keyword(s): Detention Centers; Gender-Based Crimes; Genocidal Rape; Rape; Sexual Violence; Sexual Violence, Persecution
Procedural History: On July 25, 1995, an indictment against Ratko Mladic and Radovan Karadzic was confirmed charging both defendants with superior responsibility for genocide and both individual and superior responsibility for crimes against humanity and war crimes.1 Allegations of rape and sexual assault were provided in support of the charges of genocide and persecution as a crime against humanity.2 On November 14, 1995, a second joint indictment was confirmed in relation to crimes that took place in Srebrenica in July 1995.3 An amended indictment against Mladic only was filed on October 10, 2002.4 On October 15, 2009, over fourteen months after Karadzic’s arrest in July of 2008,5 the cases against Mladic and Karadzic were officially severed because Mladic was still at large.6 The Prosecutor submitted a Second Amended Indictment against Mladic on June 1, 2011,7 adding allegations of rape and sexual violence in support of the charges of deportation and other inhumane acts (forcible transfer) as crimes against humanity.8 Following Mladic’s arrest in May 2011, a Third Amended Indictment was submitted on October 20, 2011,9 and a Fourth Amended Indictment on December 16, 2011.10 Allegations of rape and sexual violence in support of the charges of genocide and the crimes against humanity of persecution and deportation did not change between the Second and Fourth amendments,11 except that some of the locations at which the crimes were alleged to have occurred were removed pursuant to a Rule 73 bis (D) request by the Trial Chamber.12 This is a digest of the Fourth Amended Indictment against Mladic of December 16, 2011 (Indictment).
Charges: The Prosecution charges Ratko Mladic with individual responsibility for his participation in a widespread joint criminal enterprise (JCE) with the purpose of committing the 11 violations alleged, as well as command responsibility for failing to prevent or punish the same acts by his subordinates, acts which are alleged to constitute: two counts of genocide; persecution, extermination, murder, deportation, and other inhumane acts as crimes against humanity; and murder, unlawful attacks on civilians, taking hostages, and committing acts of violence with the primary purpose of spreading terror among the civilian population as war crimes ( 35-86). Sexual violence and rape constitute some of the underlying facts contributing to the first count of genocide as well as persecution, deportation, and the inhumane act of forcible transfer as crimes against humanity ( 39, 52-53, 59, 70). The Prosecution alleges that Mladic was a high-ranking commander in the Yugoslav People’s Army (JNA), attaining the rank of Colonel General by June 1994 and working in concert with Radovan Karadzic and others from October 1991 to November 1995 to remove, eliminate, and terrorize Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory in Bosnia and Herzegovina ( 3, 5, 7-8, 11, 14, 47-49). During this process, the Prosecution alleges that the accused and others unlawfully arrested and interned civilians and subjected them to rape and other acts of sexual violence and that during and after takeovers and both within and outside of detention facilities, the accused and others persecuted Bosnian Muslims and Bosnian Croats by raping and inflicting on them other forms of sexual violence ( 52-53, 59). Additionally, allegations that Mladic was part of a “joint criminal enterprise to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys of Srebrenica and forcibly removing the women, young children and some elderly men from Srebrenica” support the charges of genocide ( 41).
Key Gender-Based Issues:
• The Indictment alleges that throughout Bosnia and Herzegovina numerous civilians were unlawfully arrested and interned in detention facilities as part of an orchestrated and widespread JCE, the objective of which was to permanently eliminate Bosnian Muslims and Bosnian Croats from the Bosnian Serb-claimed territory ( 8, 19, 39, 47-53).
• It is further alleged that within these detention centers conditions were such as to bring about unbearable life conditions and that detainees were subjected to rape and other acts of sexual violence ( 39, 53).
• These allegations support the charges of genocide, persecution on political, racial, or religious grounds as a crime against humanity, deportation as a crime against humanity, and the inhumane act of forcible transfer as a crime against humanity ( 39, 52-53, 59, 70-71).
• The Indictment alleges that Mladic committed, by acting in concert with others, to plan, instigate, order, and/or aid and abet genocide and that he “knew or had reason to know that genocide was about to be or had been committed by his subordinates, and he failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof” ( 35). In support of the genocide charges, the Prosecutor alleges that Bosnian Serb Political and Governmental Organs and Serb Forces caused serious bodily or mental harm to thousands of Bosnian Muslims and Bosnian Croats during their confinement in detention facilities, at which they were subjected to various abuses including rape and other acts of sexual violence ( 39).
• As noted above, the Prosecutor alleges acts of rape in support of the charges of genocide and the crimes against humanity of persecution, deportation, and other inhumane acts (forcible transfer) ( 39, 52-53, 59, 70).
• As noted above and below, in support of the charges of genocide and the crimes against humanity of persecution, deportation, and other inhumane acts (forcible transfer), the Indictment alleges that throughout Bosnia and Herzegovina, both within and outside of detention facilities, Bosnian Muslims and Bosnian Croats were subjected to rape and other forms of sexual violence ( 39, 52-53, 59, 70).
SEXUAL VIOLENCE, PERSECUTION:
• In support of the charge of persecution as a crime against humanity, the Prosecutor alleges that the accused and other members of the Serb Forces and Bosnian Serb Political and Governmental organs committed several persecutory acts against Bosnian Muslims and Bosnian Croats, both within and outside of detention centers with the objective of terrorizing and forcibly displacing Bosnian Muslims and Bosnian Croats, including rape and other forms of sexual violence ( 52-55, 59).
GENDER BASED CONDUCT:
• In support of the charge of genocide, the Prosecutor alleges that Mladic was part of a “joint criminal enterprise to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys of Srebrenica and forcibly removing the women, young children and some elderly men from Srebrenica” ( 41). Note that while the indictment does not describe this as gender-based conduct, the fact that men and boys were targeted because of the expectation that they would serve as soldiers for the opposing side supports its characterization as a crime of gender violence.13
1 Prosecutor v. Radovan Karadzic & Ratko Mladic, Indictment of July 24, 1995, 33, 35, 36, 39, 41, 43, 45, and 48.
2 Id. 19, 22.
3 Prosecutor v, Karadzic & Ratko Mladic, Indictment of November 14, 1995. This indictment contains 20 counts of genocide, war crimes, and crimes against humanity concerning the July 1995 events in Srebenica. No crimes involving gender or sexual-based crimes are included in this indictment.
4 The Prosecutor v. Radovan Karadzic & Ratko Mladic, Indictment of October 10, 2002.
5 Prosecutor v. Radovan Karadzic, Order Assigning a Case to a Trial Chamber, July 22, 2008.
6 The Prosecutor v. Radovan Karadzic, Order Severing Ratko Mladic, October 15 2009, p. 2.
7 According to the Trial Chamber’s Decision on Amendment of Indictment of May 27, 2011, the Prosecutor amended the indictment in order to “update, clarify, and further particularize its allegations” including the nature of the joint criminal enterprise; change some of the allegations with regard to the municipalities and timeframe in which the alleged crimes occurred; remove counts of cruel treatment or inhumane acts (neither of which included allegations of sexual or gender-based violence); divide the allegations supporting the charge of genocide into two separate counts to reflect different time periods and locations; and to add additional details regarding locations at which alleged crimes occurred ( 5-8).
8 See Prosecutor v. Ratko Mladic, Indictment of June 1, 2011, 70, 74.
9 Prosecutor v. Ratko Mladic, Indictment of October 20, 2011.
10 Prosecutor v. Ratko Mladic, Indictment of December 16, 2011.
11 See supra n. 2 and compare 19 and 22 to n. 9 34(b) and 37(b), n. 11 at 39, 44-46, and 52, and n. 12 39(b), 46, 52-53, 59, and n. 13 39(b), 46, 52, and 59.
12 Prosecutor v. Ratko Mladic, Decision Pursuant to Rule 73 bis (D), December 2, 2011. Rule 73bis (D) provides: “After having heard the Prosecutor, the Trial Chamber, in the interest of a fair and expeditious trial, may invite the Prosecutor to reduce the number of counts charged in the indictment and may fix a number of crime sites or incidents comprised in one or more of the charges in respect of which evidence may be presented by the Prosecutor which, having regard to all the relevant circumstances, including the crimes charged in the indictment, their
classification and nature, the places where they are alleged to have been committed, their scale and the victims of the crimes, are reasonably representative of the crimes charged. International Criminal Tribunal for the former Yugoslavia, Rules of Procedure and Evidence, IT/32/Rev. 48 (19 November 2012), R. 73bis (D).
13 See Cate Steains, Gender Issues in The International Criminal Court: The Making of the Rome Statute 357, 373 n. 51 (Roy S. Lee ed., 1999).