Huge damages demanded of perpetrators unlikely to be recovered, but the judgements do provide a degree of justice for the victims.
By Rachel Irwin - International Justice - ICTY
TRI Issue 689, 26 Apr 11
A civil court in France last month ordered ex-Bosnian Serb president Radovan Karadzic and fellow wartime politician Biljana Plavsic to compensate a Bosniak family for the suffering they endured during the war, but many experts say it is unlikely that the family will see any of the money awarded to them.
While this most recent French case is said to be the first of its kind in Europe, Karadzic has already faced two major civil lawsuits in the United States.
One, known as Kadic vs Karadzic, was initiated by Bosniak and Croat women rape victims who were represented by prominent legal scholar Catharine MacKinnon. The other, known as Doe vs Karadzic, was filed on behalf of a broader group of survivors by the Center for Constitutional Rights in New York.
Both cases were brought in 1993 under a centuries-old American law known as the Alien Tort Statute, which allows non-US citizens to bring civil claims for violations of international law. The Kadic vs Karadzic lawsuit also utilised the Torture Victim Protection Act, which had just come into force at the time.
Because Karadzic travelled to New York during the Bosnian war, lawyers representing both groups of plaintiffs were able to have him “served” with the legal complaints.
The two cases went to trial separately in 2000, after which a New York district court ordered Karadzic to pay 745 million US dollars in combined compensatory and punitive damages to the plaintiffs in the Kadic vs. Karadzic case. The plaintiffs in the Doe vs. Karadzic case were awarded 4.5 billion dollars, also in combined damages.
Karadzic, who was president of the self-declared Bosnian Serb entity Republika Srpska from 1992 to 1996, was determined liable for acts of genocide, rape and torture, among other injuries.
“I haven't collected any damages so far, and neither have other plaintiffs, although the judgement was handed down a long time ago,” said Jadranka Cigelj, a plaintiff in the Kadic vs Karadzic case who was raped and tortured in the Bosnian Serb-run prison camp of Omarska during the war.
“I doubt we ever will,” she said.
The same could end up being true for the plaintiffs in the French case, Zuhra and Adil Kovac and their two children, who adopted French nationality after being driven out of their home in Foca, a town in eastern Bosnia. According to news reports, Adil was severely beaten and left disabled, and after the family fled into the woods, the grandmother was killed and the son was shot in the leg.
The court determined that Karadzic and Plavsic were personally liable for the family’s ordeal and awarded them some 200,000 Euros.
The court said it needed more information to determine the liability of ex-Bosnian Serb army commander General Ratko Mladic, who remains a fugitive, and that it was not competent to determine the responsibility of Bosnian Serb wartime politician Momcilo Krajisnik – who is currently serving a 20-year prison term - though the reasons for this are not clear.
"This sentence cannot compensate the suffering that we have survived, but it's a big win for us anyway," Zuhra Kovac told the news agency AFP after the court's verdict.
The family’s lawyer, Ivan Jurasinovic, did not respond to IWPR’s numerous requests for an interview. After the verdict, however, he was quoted in news reports as saying that “this means that citizens will no longer have to wait for the criminal trial of war criminals in order to obtain civil redress”.
But law experts say it is not so simple.
In order to obtain any money or assets from Plavsic – who worked closely with Karadzic during the war - the plaintiffs would have to petition a Serbian court to recognise and enforce the judgement, assuming it is not appealed.
Plavsic was granted early release from a Swedish prison in 2009 after pleading guilty to the persecution of non-Serb civilians in 2003. She currently resides in Belgrade.
“Theoretically, [the plaintiffs] can petition a Serbian court to recognise the judgement of a French court, and then to enforce the judgement,” explained Marko Milanovic, a Serbian lawyer and international law expert who lectures at the University of Nottingham in England.
“Enforcement could in theory encompass the forfeiture and sale of Plavsic’s apartment in Belgrade or whatever bank assets she’s got,” Milanovic said. “That’s what they could do in theory, whether in practice that’s going to work out, it’s very hard to say.”
He said numerous “technicalities” in the law could enable Serbia to plausibly dismiss the request, even if there are conventions or treaties in place regarding the recognition of civil judgements. He noted, however, that the two biggest treaties on this topic, known as the Brussels and Lugano conventions, apply only to European Union member countries, which Serbia and Bosnia are not.
In addition, he said the case has the potential to be politically “explosive”.
“On the other hand, they might surprise us, who knows,” Milanovic said.
As for Karadzic, he is currently standing trial for war crimes, crimes against humanity and genocide at the International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague. He was arrested in Belgrade in 2008 after 13 years on the run.
Though Karadzic represents himself in court, the ICTY is providing funding for several members of his legal team while it continues to investigate his claims of indigence. According to the court registry, if Karadzic is eventually found to have means to pay for his defence, he could be asked to pay back the funds.
Peter Robinson, Karadzic’s legal adviser, told IWPR that Karadzic “doesn’t have any money” and owns no property, at least to his knowledge.
“I don’t think he plans to do anything but ignore it,” Robinson said, referring to the French judgement. “Right now he’s totally consumed with this trial [at the ICTY].”
Robinson said that Karadzic did receive “some piece of paper” regarding the proceedings in France, but he “refused” it. While he could have sent a lawyer to represent him there, “he likes to represent himself on these issues”, Robinson said.
“He was waiting for an invitation to stop his trial here in The Hague and go to France, but that never came,” Robinson continued. “I think, for him, basically he feels like the judge never heard his side of the story, so he’s not in a position to go there and defend himself, so he doesn’t feel there is much validity to what they did in France.”
While trials held in the total absence of the defendant are not permitted at the ICTY or in many criminal systems, they are far more common in civil proceedings, both in Europe and the US, experts say.
“If you serve someone with process and they don’t show up, you can get a default judgement against them,” explained David Bosco, an assistant professor at American University’s School of International Service and a contributing editor at Foreign Policy magazine.
“It’s not quite the same as a trial in absentia,” he said. “The idea is that basically someone shouldn’t be able to not be sued just because they don’t show up in court.”
The standard of proof is also different in civil cases, which is why someone might be found liable for substantial damages but perhaps not convicted in a criminal court. This is what happened in the infamous murder case of OJ Simpson, several lawyers pointed out.
After initially hiring a lawyer, Karadzic eventually defaulted on both US civil cases, and Robinson said that as far as he knows, Karadzic never made “any payment of any kind” as regards those damages.
The damages awarded in the French case obviously amount to considerably less money, but that doesn’t mean collecting from Karadzic will be any easier.
“There’s nothing that can be done,” Milanovic said bluntly, and noted that this was especially true if there are no assets under his name.
If Karadzic’s wife or children own property, it would have to be proven that “he transferred those assets with the purpose of avoiding the execution of that judgement”, explained Beth Van Schaack, an associate professor at Santa Clara Law School in California.
There have been suggestions that Republika Srpska, RS, the self-declared Bosnian Serb entity which Karadzic led during the war, should have to pay damages on Karadzic’s and Plavsic’s behalf.
Jurasinovic, the Kovac family lawyer in France, was recently quoted in Bosnian political magazine Dani as saying that “we'll ask Republika Srpska to pay the damages, because it enabled the defendants to commit this crime”.
Legal experts, however, say these efforts would probably not be successful.
“[Republika Srpska] could do so as a matter of grace, but no, there’s no legal compulsion there,” Van Schaack said.
Milanovic said it was “impossible” to force RS to pay any damages to the plaintiffs. The only way it might work is if RS was a litigating party in the suit, which it isn’t, he said. And courts in the entity are not likely to recognise these types of judgements anyway.
“Other than symbolically, nobody has really benefitted from [these lawsuits],” he said. “It’s not something you can get money out of.”
Yet, those who have worked on these cases say that while financial compensation is important, the actions are about much more than that.
“What the [plaintiffs] want is a declaration from the court that international law was violated, that they were victims, and that this individual should be held responsible for these violations,” said Van Schaack, who has worked on numerous human rights related cases and was formerly the executive director of the Center for Justice and Accountability in San Francisco.
She also worked on the Doe vs Karadzic case when she was a student at Yale Law School.
Van Schaack said that unlike criminal cases, civil suits are driven by the plaintiffs.
“In a criminal case, you’re at the mercy of the prosecutor…and you need to have the political will for a prosecutor to move forward,” she said.
In criminal courts, including international tribunals like the ICTY, “the prosecutor is not really representing the victim”.
“The victim is a witness for the prosecutor, and the prosecutor will use the victim as necessary to make the case, but won’t necessarily take in the victims’ views on how to structure the case, or how to move the case forward, because ultimately it’s the prosecutor’s case, not the victims’ case,” Van Schaack said. “These civil suits give autonomy to the victim.”
In civil cases, the plaintiffs make the decisions about who to sue, in what forum, and what claims to bring to court. They also often have a “one-on-one” relationship with the lawyer representing them, Van Schaack said.
These lawsuits can be groundbreaking in other ways. For example, in 1995, a US circuit court of appeals decision in the Kadic vs Karadzic and Doe vs Karadzic cases established the legal claim of rape as genocide for the very first time. This was three years before the International Criminal Tribunal for Rwanda, ICTR, established rape as an act of genocide for the first time in an international forum, under international criminal law.
“The [1995 US circuit court] decision continues to be a milestone decision cited by US courts,” said Jennifer Green, a former senior staff lawyer at the Center for Constitutional Rights in New York who represented plaintiffs in Doe vs. Karadzic. She is currently the director the Human Rights Litigation and International Advocacy Clinic at the University of Minnesota Law School, where she is also an associate professor.
Green said the 1995 US circuit court decision was discussed in international advocacy efforts relating to the then fledgling ICTY – which only came into existence in 1993 – and, in her opinion, it also “contributed to the campaign to recognise rape as a human rights violation and as a form of torture and genocide”.
This was also true of the cases themselves.
Kadic vs Karadzic “delegitimised” Karadzic and helped to spur an international movement against gender-based violence, especially in conflict situations, said Catharine MacKinnon, who conceived and created the Kadic case, which claimed rape as genocide, as a war crime, and as torture, among other injuries. MacKinnon is currently a law professor at the University of Michigan, a long-term visitor at Harvard, and also serves as the Special Gender Advisor to the Prosecutor at the International Criminal Court, ICC.
“[This] has changed the face of the international legal order for the better,” MacKinnon said.
The civil trial itself “provided a forum in which the survivors testified in public about what happened to them and were believed”, she continued. “The jury that heard [the women’s] testimony decided that very substantial injuries had been inflicted upon them, and awarded them specific damages, individually, valuing them and what had happened to them.
“All these processes and outcomes were part of the recovery of a measure of humanity that the perpetrators tried to take away. The clients said it gave them hope.”
She said that while collecting damages - however important - is a difficult thing, especially when a case is brought against a private individual, she pointed out that “the legal process has value that transcends its material outcomes”.
“It can recognise the full citizenship and integrity of people who are otherwise disregarded and discarded,” MacKinnon said. “It can establish they were wronged, and, in the case of civil proceedings, makes the perpetrators accountable to them directly. It can give them a voice. It attaches a justified stigma to the perpetrators and can help remove an unjustified one from their victims.”
She stressed, however, that the plaintiffs are “entitled to these damages, having been damaged, and there is no regularised international procedure for collecting them, which should exist”.
Green said the effort to collect damages in the Doe vs Karadzic case is “an ongoing and difficult effort” but that a conviction at the ICTY could “give added momentum” to the process.
“An international mechanism and increased coordination for the collection of [civil] judgements will be critical,” Green said.
But as MacKinnon pointed out, at the moment no such mechanism exists.
More than ten years after the judgement in the Kadic vs Karadzic action, Jadranka Cigelj – a plaintiff in the case – said she is trying to move on.
“After all these years and all my life experiences, I no longer think about my torturers, not even Karadzic,” Cigelj told IWPR. “That page of my life is closed and now I have to focus on other things, such as the struggle to survive.”
Still, she said that to her, “the difference between a criminal conviction and a civil judgement is huge”.
“The former results in a concrete punishment, such as serving time in prison, while the latter can give the victims some sort of satisfaction, if ordering damages to be paid can ever really be a proper satisfaction to the victims,” she said.
Rachel Irwin is an IWPR reporter in The Hague.