Nevenka Tromp, a professor at the University of Amsterdam, who spent 12 years as a researcher at The Hague tribunal, analyzed the verdict against Ratko Mladic, who was sentenced to life in prison on Tuesday for the Srebrenica genocide and other crimes in Bosnia and Herzegovina (BiH).
Professor Tromp was asked to clarify how it is possible that the chair of the five-member Appeals Chamber, Judge Prisca Matimba Nyambe from Zambia, had different, dissenting opinion.
Judge Nyambe’s views
“Most often, the dissenting opinions are a reflection of taking one party’s argument. This is certainly the case in its disagreement with four of its colleagues, Judge Nyamba, who backs up her views with arguments from Mladic’s defense, which she considers more convincing than counter-arguments and disputes from the side of Prosecution. At one point in the text, she states that she uses the criminal law test in weighing evidence – that when there is doubt, then a decision must be made in favor of the accused, which is a test of proving guilt “beyond a reasonable doubt,” explained prof. Tromp.
On the other hand, as Tromp adds, the opinions of Judges Panton and N’guma accept the Prosecution’s arguments that genocide took place in six municipalities in 1992 and that there was an “umbrella” joint criminal enterprise (JCE) in which Mladic also participated.
“These two judges have the same defense arguments as the Trial Chamber’s reasoning in the non-final verdict that the crimes in those municipalities were not genocide and decide that the Prosecution’s arguments are more convincing. Different opinions in such drastic cases of disagreement create confusion about the importance of judgments as an authoritative narrative about the guilt of individuals. The adversarial or rival approach that is part of Anglo-Saxon law emphasizes the narrative of the Prosecution and the narrative of the Defense, which are the complete opposite of each other, ” Tromp told.
As she explains, the judges sit and listen to the evidence and decide in the end which side was more convincing.
“This is how the verdict is passed. That verdict should reflect the ratio of those narratives and declare whether the accused is guilty beyond any doubt on the counts of the indictment. Separate opinions often replicate the dominant narrative of the Defense – not guilty, or the Prosecution – guilty. So, regardless of judgment, these opinions give a lot of room for revisionism of verdict, but also of historical narrative.
”References from dissenting opinions can now be used as footnotes by apologists, deniers of crimes, and nationalist-minded people in writing apologetic history, ” noted prof. Tromp.
How is it possible that justice depends on a single vote?
Likewise, she adds, dissenting opinions that genocide took place in six municipalities in 1992 can now be used as an argument that there was genocide there, but that for some reason the Tribunal was not ready to confirm it now or in its earlier judgments.
“One thing is for sure, dissenting opinions will be selectively used in public in articulating some more favorable truths. It was interesting that the decision on genocide in these six municipalities was made on a 3:2 basis, which means two judges of the Appeals Chamber considered that crimes in these municipalities can be qualified as genocide. The bitter taste of this majority justice remains and we all wonder if justice for the thousands killed in these six municipalities may depend on a single judge. Now it seems that the Tribunal, i.e. the Mechanism ends its 28th annual mandate with the message – The Justice is slow, but also unattainable, ” prof. Tromp concluded, Klix