[[{"fid":968,"view_mode":"media_medium","attributes":{"title":"Initial appearance of Ratko Mladic at the ICTY.","class":"format-media_medium align-right"}}]]The arrest of Ratko Mladic reignited debates on a wide spectrum of related issues, from its implications on the prospects for true reckoning with the past in the countries of the former Yugoslavia to the possible jolt it will give to Serbia’s hopes of joining the European Union. Beyond the immediate impact on the region, the strongest reverberations of Mladic’s transfer to the International Criminal Tribunal for the former Yugoslavia (ICTY) will be felt in the discourse on international justice.
Many, including myself, almost gave up on hope that they would ever see the arrest of the man who still commands an almost fanatical following among the Serbs. And while the picture of an old man in a scruffy baseball hat bears little resemblance to the once all-powerful and ruthless general declaring revenge on Srebrenica for the deeds of Ottoman occupiers from 500 years ago, his apprehension is of enormous importance for the struggle against impunity and credibility of international justice.
Although it will not be judged solely on whether it brought to trial all of its indictees, the tribunal itself stands to gain the most, as without Mladic in the dock its record would be fundamentally incomplete. There are challenges ahead for the ICTY, most notably in ensuring the remaining fugitive Goran Hadzic is not forgotten and remaining trials, including Mladic’s, are successfully completed. Fears of seeing the repeat of the “Milosevic scenario”—where Mladic, allegedly in poor health, would die before the trial is finished—have already led to calls for reduction of the indictment and numerous questions about the efficiency of international courts.
One such contribution stands out with the questions it raises and arguments it offers. Ian Buruma, a respected professor and author on democracy and human rights, in his commentary “The Crimes of Ratko Mladic” asks two, in his words, “uncomfortable” questions: “Why, in the first place, can't Mladic be put on trial in Belgrade, instead of The Hague? And is it really wise to charge him with genocide, as well as crimes against humanity and war crimes?”
Buruma chooses a perverse structure around which to build his critique of the development of the crime of genocide. The problem, he tells us, is that genocide is a vague legal concept and we have applied it because we are stuck, reliving the 1942 scenario of what should have been done to stop Hitler. This he says gives rise to misguided military interventions, such as trying to stop Bashir in Darfur and Qaddafi in Libya.
There are many oddities in this contrarian attack. Darfur was one of the very few cases where a major power, in this case the United States, declared outright that what was occurring was genocide. However, there has been no military intervention in Darfur but for an extremely limited African Union peacekeeping force. In Rwanda there was military presence (of the UN) that was only able to impotently watch as genocide unfolded. In Libya there is no mention of genocide at the Security Council (other than by recently converted Libyan officials). The council’s resolutions or the recent ICC warrants make no mention of genocide. In Iraq there was no suggestion that genocide was the motivating cause of recourse to military action—it was the alleged weapons of mass destruction.
In fact, where genocide has occurred there has been no substantive international military intervention. It would therefore appear it is not the fear or reality of genocide that leads us into misguided conflicts. Genocide and the pursuit of its perpetrators are simply the wrong targets for criticism here.
Buruma asserts the problem with genocide is that it is a vague legal concept primarily because it requires proof of the intent to destroy the ethnic, racial, religious, or political group. Proving the intention is one of the basic functions of any prosecutor in any crime. The element that makes criminal cases complicated tends to be the facts, not the concepts. Genocide cases will almost inevitably give rise to a huge number of facts, layers of complexity, and deeply contested issues. Buruma’s flawed line of thought suggests in truth Mladic should be understood to have carried out “ethnic cleansing,” not genocide, because the intent was not to destroy the group.
The following points about genocide are clear: first, the whole group need not be the target of destruction—but a significant part of it must be. Second, you need not succeed in destroying a significant part of the group to be guilty of genocide. An accused needs only to have carried out acts intending to destroy a significant part of the group. The measure of his guilt is in what he intended through the act, not simply what he achieved. What the accused achieved may provide the most compelling evidence of what he intended, but it is not what the crime of genocide requires.
Those reserving the term genocide as fitting only to Hitler’s crimes should note the crime of genocide was not part of the London Charter (1945) that formed the jurisdiction of the Nuremberg Tribunal. The crime came into being in 1948 under a UN convention at the urging of a Polish jurist, Rafael Lemkin, who had been troubled above all by the occurrences in Armenia in 1915-17. Armenia was of course of a different order to the Holocaust, just as Rwanda and Srebrenica are.
The developments in international human rights law in the past fifty years and in international criminal justice in the past twenty years are an attempt to do two things: to reaffirm basic, internationally shared human values; and to offer some degree of protection wherever possible to ensure such groups do not perish at the hands of genocidaires.
Having convicted several people of genocide in Srebrenica, it is hard to imagine anything so imprudent as the prosecutor not proceeding with a prosecution of Mladic for the same charge. He is perhaps the person most responsible for the atrocity. If so, not only would it offend any sense of natural justice for his subordinates to be convicted of genocide while he was not, it would send a signal of supreme weakness at the international level in the attempt to ensure basic values are affirmed and upheld.
Those of us who work in the international justice field share the sense that sometimes the label of genocide is reached for too quickly, unthinkingly, and with the result of diluting the horror it deserves. But the deliberate murder of eight thousand men and boys effectively erasing the Bosnian Muslim community in the eastern part of Bosnia is not the one to which the critique should be attached.
As for the question why Mladic can’t be put on trial in Belgrade instead of The Hague, I suggest Buruma puts it directly to the government of Serbia, where a recent poll revealed more than 70 percent of the population regards Mladic as a hero they would never want to see on trial. Buruma may be surprised to find—the fragility of Serbian judiciary aside—Serbian president Boris Tadic might just be the most thankful of all of us that the ICTY exists.
