Pyrrhic Justice?: Reflections on the Mladić Conviction and Its Impact

Because of his conviction on November 22nd at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, Ratko Mladić will most likely die a convicted war criminal. The former commander of the Bosnian Serb Army (VRS) was found guilty on 10 of the 11 counts with which he was charged: genocide, persecution (a crime against humanity), extermination (a crime against humanity), murder (a crime against humanity), murder (a violation of the laws or customs of war), deportation (a crime against humanity), forcible transfer (a crime against humanity), terror (a violation of the laws or customs of war), unlawful attacks on civilians (a violation of the laws or customs of war), and the taking of hostages (a violation of the laws or customs of war). Mladić was also implicated in four joint criminal enterprises (JCEs): 1) the objective of removing Bosnian Muslims from Serb-controlled areas of Bosnia and Herzegovina through the means enumerated in the charges above; 2) a JCE on the siege of Sarajevo; 3) a JCE on Srebrenica, where 8,000 Muslim men and boys were exterminated in July 1995; and 4) a JCE regarding the taking of unarmed UN hostages from May-June 1995. The only count on which Mladić was exonerated was a charge of persecution and extermination of Bosnian Muslims in the municipalities of Sanski Most, Vlasenica, Foča, Kotor Varoš, and Prijedor municipalities because the court was not satisfied that the terms of genocide were sufficiently met. In response to my query, a friend who followed the court’s rationale wrote me that “Genocide 1 was never going to fly as ICTY’s interpretation of intent has been set a long time ago. So no surprise there. Višegrad and some other municipalities were cut out when OTP [Office of the Prosecutor] refreshed the indictment after his arrest.” As such, the verdict meted out was the maximum which could realistically be expected. Mladić was sentenced to life imprisonment. It is a near certainty that the verdict will be appealed.

It’s been 22 years since Mladić was indicted by the ICTY, and over 25 years since the commission of some of the crimes of which he was convicted. The Mladić case is the final case the ICTY will try. Reflecting on the ICTY’s legacy in terms of whether justice was served for those killed, maimed, raped, displaced, or otherwise damaged by the wars in what was once Yugoslavia is in order. The observations and opinions I offer are those of someone who has been engaged professionally as an analyst and advocate in and on the Balkans, with the hope that justice would ultimately prevail.

The American posture toward the wars in the former Yugoslavia, beginning with Slovenia, but particularly in Bosnia and Herzegovina, were formative for me. As an applicant to the US Foreign Service, and troubled by American non-intervention in what was clearly at the time a genocidal war, the resignation of three US diplomats in August 1993 had a profound impact on me. I wondered if I would have the guts to resign were I in their position – having to represent a policy which I felt to be deeply immoral. I then asked myself “why would I ever put myself in such a position?” The spell of wanting to be an American diplomat was broken. I still wanted to engage on matters I cared deeply about, but without being beholden to a state policy. I found a way to do that when I went to work for the advocacy organization, the Balkan Institute, which two of the resignees had co-founded.

I intently followed the war from afar, reading the press coverage assiduously. I remember watching ABC News’ Peter Jennings, who played an important role in keeping the war in Bosnia and Herzegovina on the public agenda, report on the refugees arriving in Tuzla. The whole war was replete with crimes in which Mladić was implicated; Srebrenica was merely the single most concentrated atrocity in what was a long string of atrocities.

Accountability for these crimes was a long time coming. Many of us in the far-flung but close-knit community who were demanding that perpetrators like Mladić, Bosnian Serb political leader Radovan Karadžić, and others face justice felt the flagging international commitment to such justice soon after the war was brought to an end with a deeply flawed but necessary peace. Less than a decade ago, when Mladić and Karadžić were still at large and living comfortably in Serbia, it was readily apparent to all who cared to see that Belgrade was playing ‘beat the clock’ with attention spans within the EU, and winning. Serbia “discovered” indictees on its territory in installments, inevitably timed to coincide with EU decision points on Serbia’s bid for membership. One by one, EU countries peeled away from insisting on full Serbian compliance with the ICTY as a condition of progress in the enlargement perspective. In the end, only the Netherlands – whose troops were in the Srebrenica enclave when it fell and allowed the women and men to be separated – maintained this condition, despite considerable pressure to be more flexible, lest the EU “lose Serbia.” Even the US applied such pressure. Were it not for the Netherlands’ repeated refusal to relent through 2011, Mladić may well have died at liberty, albeit on the lam. This should not be forgotten.

It was widely expected (including by me) that the ICTY trials, with their direct testimony and evidence, would contribute to confronting the past and allow for organic reconciliation among the peoples of the former Yugoslavia, in which over 130,000 people were killed in a series of five wars (Slovenia, Croatia, Bosnia and Herzegovina, Kosovo, Macedonia). This proved to be a naïve assumption. Yet the failure of such an impact freights the ICTY with too much responsibility.

In my opinion, the main reason that historical reckoning has yet to occur is that, unlike after the Second World War, in which Nazi Germany was unconditionally defeated and occupied, assuaging fears of a renewed war (at least with the same antagonists), nothing of the kind happened in the former Yugoslavia. Wartime leaders (some of whom were later indicted) were commuted into celebrated peacemakers by the international community. And over the last decade, the odious projects for which many of them fought (with the exception of Slovenia in toto) – the dismemberment of Bosnia and Herzegovina into ethnistans with the help of Serbia and Croatia being the largest among them – have been actively promoted by regional political elites and the media they control or heavily influence. The idea that EU enlargement would not only fill this void but also heal these fundamental and lingering political divides, and in turn obviate the need for overt NATO/US security guarantees, has been proven definitively false. The sense throughout the Western Balkans, with the partial exceptions of Macedonia which now has a hopeful new government and Montenegro which is now a NATO member, is that it’s not over. In fact, these projects have been thawed out and are now being pursued with abandon. That was never something a judicial body could resolve. The fact that this vacuum yawns so widely a generation after massive Western engagement is an indictment of Western policy toward the region – and evidence of vacant political leadership.

Rather than broad acceptance of the facts established in the Mladić trial and all that preceded it, reaction to the Mladić verdict conformed to a sad pattern. Among a majority of Bosnian Serbs and Serbians, the view is that sweeping verdicts only confirm what they’ve been saying all along: that the international community is biased against them and can never give them justice. One need only review and analyze the Research and Documentation Center’s numbers in Bosnia and Herzegovina’s case to see that Serb combatant casualties outstrip civilians 5:1, versus 1:1 for Bosniaks (with a much higher absolute number) to understand why a preponderance of Serbs were tried. More Bosniaks were killed in Srebrenica over the course of a week than Bosnian Serb civilians in the entire war. Yet Serbia’s leaders, including President Aleksandar Vučić who participated in the siege of Sarajevo, consistently promote the unfairness and victimhood line. The EU continues to applaud them as partners and future members. The inherent contradiction continues to this day.

The aggregate lesson of the ICTY’s judgements, coupled with the political developments throughout the former Yugoslavia over the past two decades, is that the human costs of the wars were not incidental, but indeed the point of an exercise which fabulously enriched the few while impoverishing the overwhelming majority. This evident reality, however, does not inform Western policy.

More indicative of where things stand presently is the fact that Milorad Dodik, the man who for the last decade has led the Bosnian Serb entity created by the 1992-1995 war, the Republika Srpska, campaigned on a platform amounting to this: I can protect Republika Srpska better than its architects and builders can, since I don’t have blood on my hands. He has called returnees to eastern Bosnia (from which they were ethnically cleansed mostly in 1992) “occupiers,” and recently drew a partition map of Bosnia and Herzegovina, creating a Croat “entity” alongside his own, which he draws attached to Serbia. This, along with Croatia’s agitating for much the same from within the EU, highlights just how effective 22 years of “peacebuilding” have been.

In that sense, the Mladić conviction doesn’t deliver finality, despite providing long-awaited justice to his victims. Rather, it feels more like an anomaly – a consolation prize for all those who had hoped for real peace, freedom, dignity, and justice after the wars.

Furthermore, present day architects of crimes against humanity – Bashar al-Assad, Omar al-Bashir, and the Burmese and Saudi general staffs to name just a sample – are far less likely to face justice than Mladić, as The Guardian’s Jonathan Freedland wrote following the verdict. The world has de-evolved on human rights protection and justice since 2000. American and British retreat, in progress before Trump and Brexit, but now in full-scale implosion, have helped make the world safe for genocidaires and war criminals.