Global community must learn from ICTY

On Nov. 22, Ratko Mladic, the Bosnian Serb general who orchestrated the massacre of Bosniaks at Srebrenica and the Siege of Sarajevo in the Yugoslav Wars of the 1990s, was sentenced to life in prison by the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). He was found guilty on charges of war crimes, crimes against humanity and genocide.

Like many mass murderers who present themselves as untouchable, he faced justice like a coward. Mladic began shouting curses at the judges as the verdict was read and actually had to be escorted from the courtroom. This dramatic moment brought the last major case of the ICTY to a close after more than two decades of trials of participants in the Yugoslav Wars.

Although the ICTY, based in The Hague, is set to close in the near future, the two other international courts housed in The Hague—the International Court of Justice (ICJ) and the International Criminal Court (ICC)—will continue to function well into the future. Just as we can see in the ongoing tragedies in Syria and Myanmar, the cruel shadows of extermination and genocide continue to loom over the face of the earth. It is imperative for the continued success and improvement of international justice efforts that we learn from the successes and failures of the ICTY.

The ICTY demonstrated that the personalization of trials for crimes against humanity can often produce mixed results. It is far easier to try an individual for genocide than it is to do so for a whole nation. Heinous individuals like Mladic, Karadzic and Miloševic have faced justice, indeed, but the Serbian government as a whole aided and abetted the ethnic Serbian troops of the breakaway Republica Srpska, which committed the Srebrenica Massacre and assaulted non-Serbian neighborhoods of Sarajevo. This government and its army, therefore, should be held accountable.

No penalty could ever truly compensate for a genocide, and it is hard to imagine where one would even start such an endeavor.

It would be a powerful gesture for Serbia to pay restitution to the survivors of the Srebrenica Massacre, though, just as the German government did to many survivors of the Holocaust. It would also partially alleviate the financial tribulations of a people who continue to struggle with the economic dislocation resulting from the collapse of communism and the carnage of war, as they have for decades now. Srebrenica survivors intend to sue the Serbian government, but “a guilty verdict would not be likely from the point of view of international law,” according to legal experts in the region (BalkanInsight, “Srebrenica Survivors ‘Unlikely to Win’ Case Against Serbs,” 11.23.17). International law needs to accept a wider definition of state culpability in human rights violations.

“It is far easier to try an individual for genocide than it is to do so for a whole nation.”

The ICTY perpetuated an unfortunate dynamic in international justice when it allowed the crimes of the winning side, Croatia and its Bosnian Croat clients, to be treated far more leniently than had been those of the losing side, Serbia and the Bosnian Serbs. Although a number of Croats did face trial and were convicted of crimes, some prominent Croat generals who orchestrated the ethnic cleansing of Serbian areas were, in fact, acquitted of crimes. In one particularly shameful case, that of Rahim Ademi, a Croatian Army general was transferred from the ICTY to the Croatian judiciary. Ademi was then acquitted of all charges by the judicial system of a country in which he is considered a hero to this day.

By compromising its impartiality the ICTY tainted its reputation as a trustworthy arbiter of justice, not only debasing itself in the eyes of the Serbian people, who largely believe that the ICTY seeks to undermine them and their country, but also giving Croatia something to point to when falsely denying its own crimes.

The overwhelming tendency for international courts to focus on weak and defeated states— for it is in such cases that they can generally expect to have the greatest chance of success—has given corrupt and autocratic regimes an excuse to withdraw from the jurisdictions of international courts. For example, all 39 of the people who have ever been indicted by the ICC have been African. This was leveraged by South African President Jacob Zuma to propose that the entire African Union stage a mass withdrawal from the jurisdiction of the ICC. Thankfully, this initiative failed, but if it had succeeded it would have constitued a massive blow to the power and efficacy of international justice. International courts need to grow teeth and face off with the victorious and the powerful if they want to maintain a continued cooperation with the Global South.

This is not to say that the genuine achievements of courts like the ICTY should be dismissed. The fact that many Croats involved in the horrors of the Yugoslav Wars avoided punishment does not mean that the justice meted out to Serbs responsible for war crimes and crimes against humanity should not be seen as a victory for those—primarily the Bosniaks—who suffered at their hands. The Nuremberg Trials were not invalid because only Nazis were tried.

The ICTY will undoubtedly leave behind a legacy marred by certain errors and contradictions, but it will still be an overwhelmingly positive legacy. The architects of the first major act of genocide in Europe since the Holocaust were ignominiously dragged before court. The international community must keep the laudable achievements of the ICTY in mind as it seeks to reform the areas in which the tribunal functioned less effectively, and it must use this momentum.

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