Academic journal article Chicago Journal of International Law

Prosecuting Genocide

Academic journal article Chicago Journal of International Law

Prosecuting Genocide

Article excerpt

The arrest of Slobodan Milosevic and his eventual trial before the International Criminal Tribunal for the Former Yugoslavia ("ICTY") certainly is a good thing for humankind. So too is the recent conviction of Bosnian Serb General Radislav Krstic for committing genocide in Srebrenica. But we cannot accept these few events as the full response to what happened in Bosnia-Herzegovina. No efforts to prosecute a few "soldiers" will be truly meaningful until the international community calls what happened genocide and compensates the many victims of the genocide for the injuries caused by the despicable Serbian policy of "ethnic cleansing."

I had the great privilege of representing women survivors of the genocide in Bosnia-Herzegovina. With my co-counsel, Professor Catharine A. MacKinnon, we prosecuted claims of sexual assault and other human rights abuses under the Alien Tort Claims Act1 and the Torture Victim Protection Act2 ("TVPA") against Radovan Karadzic, the once self-proclaimed leader of the Republic of Srpska. In August 2000, our clients courageously testified in a federal courtroom in New York and held Karadzic civilly responsible for their injuries. Now Karadzic must also be brought to the ICTY for his long-awaited criminal trial on genocide charges.

I. BACKGROUND: THE KADIC v KARADZIC LAWSUIT

In 1993, with the assistance of the United States District Court and the Secret Service, Radovan Karadzic was served personally in New York with a summons and complaint, charging him with crimes against humanity and genocide under the Alien Tort Claims Act and the TVPA. Karadzic quickly retained counsel, who vigorously represented him throughout the case.3 Karadzic unsuccessfully challenged the lawsuit on jurisdictional grounds. In 1995, the Second Circuit Court of Appeals ruled in favor of our clients, holding that a United States District Court had both subject matter and personal jurisdiction, that no other jurisdiction was practically available to try our clients' claims, and that Karadzic was properly served with process while in New York. The US Supreme Court declined to hear Karadzic's case.4

Upon remand from the Second Circuit, we promptly commenced discovery proceedings. After months during which Karadzic provided only self-serving and legally inadequate discovery responses, and failed to attend his deposition, the court issued an order compelling Karadzic to respond fully to our written discovery requests and directing Karadzic to apply for the authorizations necessary to enter the United States for his deposition. Just days before the deadline set by the court for Karadzic to comply with its order, Karadzic and his counsel wrote separate letters to the court announcing Karadzic's "carefully considered" decision that he would no longer participate in the proceedings. Like Milosevic, Karadzic-in his own words and by his own hand in a letter to the court-defiantly refused to accept the authority of a legitimate court to hear his victims' claims.

Thus, we moved for entry of a default on liability, as a sanction for Karadzic's willful and longstanding non-compliance with his discovery obligations. On June 13, 2000, the court granted our motion in its entirety. The court's entry of default conclusively established the truth of the facts pleaded in our complaint, the sufficiency of such facts to merit relief, that Karadzic caused our clients' injuries, and that Karadzic is fully liable to our clients on each of their claims.5 Given Karadzic's default, we were not required to present a single shred of evidence showing that Karadzic was legally responsible for our clients' injuries. We could have foregone a live trial entirely and simply submitted documentary evidence of our clients' damages to the court. But that option would have given Karadzic the benefit of his own defiance.

Indeed, our clients felt strongly that any victory achieved by virtue of a private exchange of court papers was wholly insufficient, given Karadzic's clear, direct, and unmitigated responsibility for their injuries. …

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