Ratko Mladic and the ‘genocide defence’

The line already repeated a number of times, Ratko Mladic defending his wartime actions as just that – acts of war in defence of his people and not acts of genocide or crimes against humanity.

The first day of Ratko Mladic’s trial at The Hague was designed to be procedural. But despite being reminded that it was not yet time for him to outline his defence, Ratko Mladic, seemingly reinvigorated by being in court, spoke out against the charges, against the court and against the time frame given to prepare his defence.

Some conclusions can be drawn from these outbursts as to the direction of his defence.

One issue that could trouble the court is proving Mladic’s actions merit that most heinous of charges: genocide.

“I just have to say that I want to live to see that I am a free man and such that I am, I am defending my country and people, not Ratko Mladic.”

This desire to be tried as a collective figurehead for his country will never be considered by the court. He is being tried as an individual for the charges against him, charged for both joint criminal enterprises and individual ones.

One issue that could trouble the court, however, is proving his actions merit that most heinous of charges: genocide.

One of the three judges presiding over the case, German Christoph Flugge, has in the past questioned the distinction between genocide and mass killing.

Read more: Channel 4 News on the arrest and trial of Ratko Mladic

“I don’t want to discuss this specific case (Srebrenica). More generally, however, I do ask myself whether we even need the term genocide to characterize such crimes.

“Why do we have to draw this distinction in the first place? Does it make it more or less unjust when a group of people is killed, not for national, ethnic, racist or religious reasons, as regulated in our statute, but merely because these people all happened to be in a certain location?”

These comments, made in 2009 to Der Spiegel, drew widespread criticism and prompted Flugge’s removal from the jugdes enlisted to preside over the case of former Bosnian Serb President Radovan Karadzic.

It seems from Mladic’s desire to defend himself in this preliminary hearing that he is ready for the challenge.

However, he has now been appointed, again controversially, to the Mladic case. It appears from Flugge’s statements that his intention was more a matter of jurisprudence than of genocide denial. Labelling something as genocide carries a higher requirement of proof – in this case, not just proof that Mladic ordered the mass killings in Srebrenica but further, that it was motivated by “an intent to destroy in whole or in part a religious, racial, national or ethnic[al] group as such”.

The ICTY asserted in 2005 that the Srebrenica killings amounted to genocide: “The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide.

“Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act.”

However, this was challenged by Slobodan Milosevic when he appeared at the ICTY, has similarly been questioned by Karadzic over the last two years, and will no doubt, following his comments today, be the contention of Ratko Mladic.

He has a month to prepare his defence, despite asking for longer. But it seems from his desire to defend himself in this preliminary hearing that he is ready for the challenge.