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| Ratko Mladic |
Last month witnessed the final outcome of a six-year trial under
international humanitarian law that examined charges brought against Yugoslav
People’s Army General Ratko Mladic (known as the “Butcher of Bosnia”),
including eleven counts of offenses fitting the definition of crimes against
humanity—genocide, ethnic cleansing, war crimes—and described by the head of
the tribunal that convicted him as “among the most heinous known to humankind.”
The conviction handed down in the case (Prosecutor v. Mladic) on November 22,
found the former general and ex-chief of staff of the Republika Srpska Army guilty of ten of those
charges for which he was sentenced to life in prison. The most major crimes by
far were the now infamous summary execution under his orders of between 7,000
and 8,000 men and boys at Srebrenica, and his Army’s siege of Sarajevo in
which 10,000 people perished.
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| Mladic in the defendant's dock in The Hague |
The importance of this and other major trials involving the Yugoslav
Wars and carried out within the context of the international enforcement of humanitarian
law cannot be overstated, particularly considering that the crimes committed
took place within the context of war in Europe. In recent years, international
justice in general—and the International Criminal Court (ICC) in particular—has
come under fire for focusing on the developing world (i.e., Africa) while
allowing Europe and the West to sort themselves out with regard to humanitarian
law. But the major media coverage that Mladic’s trial and sentencing have
received has been as much because it was the last case before the International
Criminal Tribunal for the former Yugoslavia (ICTY) as because of the
spectacularly heinous nature of the crimes committed. It is understood that any
and all residual oversight and appeals of cases brought before the ICTY will be
handled by the Mechanism for International Criminal Tribunals (MICT).
It is, perhaps, worth noting that international humanitarian law is, to
a certain extent, undermined by the only very partial authority that major
nations in the UN (the victors of World War II plus Germany) are willing to
lend it. For instance, instead of all crimes against humanity coming under the
single jurisdiction of the International Criminal Court (ICC), as would seem
logical, authority and final oversight are broken up among a series of ad hoc tribunals operating under their
own Security Council Resolutions. The court that tried Mladic, then, is not the
ICC under the authority of the Rome Statute, signed and ratified by all but a
handful of countries worldwide, but the ICTY, specially convened under UN
Security Council Resolution 827, passed in 1993. Nor have such courts
established prior to the Rome Statute (adopted in 1998 and in force since 2002)
come under its general jurisdiction, in what should be a sort of global supreme
court for humanitarian crimes.
Clearly, these special courts are not numerous. Indeed, the most
specific ones have only been set up in cases where the abuses of humanitarian
law have been so gross and impossible to ignore that the Security Council has
had little choice but to seek justice, so as to maintain the reputation of the
United Nations as the world’s number one peace-keeping organization. The first
of these and the precedent for much of international humanitarian law were the
Nuremberg Trials established to investigate and punish war crimes committed by
Nazi Germany during World War II. The ICTY, the International Criminal Tribunal
for Rwanda, the International Court of Justice (World Court) and the ICC could
all be considered outgrowths of the Nuremberg Trials and the legal precedents that
they set for humanitarian law.
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| Dozens of bodies from among thousands murdered at Srebrenica |
That said, however, the ICTY has done its job well. While Mladic’s case
has become, perhaps, the most emblematic of the Yugoslav War trials and
sentences, during its prolonged existence, the ICTY has handled a total of 111
cases and indicted 161 persons, ranging from mere soldiers to top general
officers and high-ranking political figures for their alleged parts in war
crimes. Over a score of those people were acquitted, with three of those
acquittals eventually being overturned and retrials scheduled. A total of 90
were convicted and sentenced and either served their sentences (a total of 56)
or died while in custody. Sixteen are still serving their sentences and a total
of 13 detained and brought before the tribunal in The Hague were later
transferred to courts in Bosnia and Herzegovina, Croatia or Serbia.
Although international justice, in the figure of the ICTY, has received
high praise from some quarters for its meticulous and unrelenting investigation
into crimes committed during the Yugoslav Wars of the 1990s, as related to the
cases brought before it, it has also been the target of considerable criticism.
It is important to note that much of that criticism stems from the fact that,
for survivors of these crimes against humanity, it would be difficult to
imagine any sentence that could possibly be considered proper retribution for
the horror and massive human losses that they suffered. Some observers have, in
fact, pointed to the exemplary sentences handed down in the Nuremberg Trials
following World War II, when a dozen prominent Nazi war criminals were
sentenced to hang for their crimes against humanity. Meanwhile, the maximum
sentence in the ICTY trials was “life”, as in the emblematic case of Mladic. That
said, however, there has been a great deal of positive feedback to be garnered
from the ICTY’s contribution to international justice.
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| Trump, tweeting on the wrong side of humanitarian history |
For one thing, the tribunal was the embodiment of the purpose of
international criminal law: to act when national justice fails to. Following
the Yugoslav Wars, prosecutors of the former Yugoslavia who should have been
investigating the war crimes committed during that period were clearly
reluctant to open that can of worms and reluctance swiftly turned to impunity.
The ICTY trials, then, ended up spearheading a shift from impunity to
accountability in the aftermath of the Yugoslav Wars, and to the detention and
trial of some of the main perpetrators of war crimes committed during those
related conflicts.
Secondly, the meticulous nature of the investigations carried out and the
exhaustive testimonies heard, tended to separate fact from the stilted
perceptions of the different sides involved in the conflicts. For instance,
still today, many Bosnian Serbs see Mladic as a national hero and defender of
their homeland and consider his trial and sentencing to have been a sham based
on “the lies” of his victims—just as, despite the overwhelming body of evidence
to the contrary, Holocaust deniers still today claim that the historic genocide
carried out by the Nazis before and during World War II is a mega-falsehood invented
by the Jews. The careful establishment of clear-cut evidence in the ICTY trials
has documented the truth regarding what really happened in the former
Yugoslavia and has committed that truth to history.
A third contribution is of a more technical legal nature. Legal experts
have pointed out that the ICTY trials have achieved accomplishments within the
framework of international law. As the trials surrounding war crimes in the
former Yugoslavia unfolded, concepts and precedents of international criminal
law came up that had not been ruled on in a court of law since the Nuremberg
Trials. Some of these concepts, then, ended up being reviewed and expanded upon
as a result of ICTY court action.
Fourth, by taking action where local prosecutors hadn’t, the international
tribunal ended up imposing international legal standards on national courts in
the former Yugoslav states that did indeed later initiate actions to prosecute
war crimes, thus providing a global benchmark for these and all future war
crimes trials.
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| Mladic in the hills above Sarajevo: Another mass slaughter |
But in the end, perhaps the most important job that the ICTY did by
ending impunity was to provide both a voice and a forum for justice to the
thousands of victims of war crimes committed during the Yugoslav Wars of the
1990s. The best measure of this is the enormous number of witnesses permitted
to tell their stories to the Tribunal during the course of the trials of those
who would later be convicted of war crimes and crimes against humanity.
The telling and recording of their stories before this highly specific
court has committed them to memory and made them an indelible part of the
history of international humanitarian law.
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