By Dejan Anastasijevic, a senior investigative reporter with Vreme, a Belgrade-based weekly newsmagazine, and a contributor to Time magazine (THE WASHINGTON POST, 20/07/08):
Last week, the prosecutor of the International Criminal Court in The Hague issued an arrest warrant for Sudanese President Omar al-Bashir for genocide and crimes against humanity committed in Sudan’s Darfur region. The move sparked criticism that the indictment will reduce chances for peace in Darfur. We have seen this all before: In 1993, at the apex of the Bosnian war, the Hague-based International Criminal Tribunal for the former Yugoslavia was established with roughly the same objective — to bring justice to the victims of a war that the great powers were unable or unwilling to stop.
Let’s check the results.
What ever happened to Ratko Mladic, the Bosnian Serb general who ordered the slaughter of about 8,000 Bosnian Muslims in Srebrenica in July 1995? Or to his political master, Radovan Karadzic, who pounded Sarajevo for more than three years and drove hundreds of thousands of non-Serbs from their homes during the Bosnian war? Both men were indicted by the tribunal in 1995, and both are still at large 13 years later. What’s worse, their prospects of remaining free grow with each passing day, since the tribunal has to complete all its cases by the end of this year and review the appeals by 2010. The arrest warrants will remain in place, but as of next year, there will be no one to try either of those men.
The list of the tribunal’s underachievements doesn’t end there. In the midst of his long-running trial, Slobodan Milosevic, the Serbian dictator widely regarded as the chief culprit in the bloody breakup of Yugoslavia, died of heart failure after taking medicine known to counteract other drugs he had been taking for coronary problems. Milosevic’s death deprived his surviving victims of closure and allowed his supporters to continue to claim that he was innocent.
The trial of Jovica Stanisic, the head of Milosevic’s notorious secret police, hasn’t even begun, even though Stanisic was apprehended five years ago and might be released because of health problems. Ramush Haradinaj, the Albanian militia leader in Kosovo indicted for the murders of at least 40 civilians, was acquitted in April due to lack of evidence after key prosecution witnesses were killed or refused to testify.
Meanwhile, Vojislav Seselj, Milosevic’s political ally and, along with Stanisic, the chief organizer of the paramilitary units that wreaked havoc in Croatia and Bosnia, is currently on trial but is likely to be released for lack of evidence. He almost became Serbia’s premier when his ultranationalist party came dangerously close to winning the Serbian parliamentary elections in May, garnering nearly 30 percent of the vote.
So was it all a huge mistake? Fifteen years ago, when the U.N. Security Council established the tribunal, it was met with great enthusiasm both by the war’s victims, who expected justice and closure, and by human rights activists, who saw it as a great leap forward for international law. Western political leaders, who lined up in support of the court, might have had a slightly different agenda: The war in Yugoslavia was still raging, and the public, horrified by footage of mass graves and suffering civilians, wanted something done. Setting up the tribunal seemed like a good way to deflect the pressure to intervene militarily. There were also hopes that the court’s very existence would deter future crimes and speed up reconciliation in the Balkans by individualizing the guilt for wartime atrocities.
In retrospect, these hopes were naive. Some of the worst crimes in the former Yugoslavia, such as the massacres at Srebrenica and the ethnic cleansing of Kosovo, occurred well after the tribunal became fully operational — so much for deterrence. As for reconciliation, the tribunal has accomplished even less. In fact, it has done exactly the opposite, because all the nations of the former Yugoslavia see it as a political instrument aimed at demonizing their heroes and sanitizing their enemies’ records.
Resentment of the tribunal is strongest in Serbia, which had to deliver the bulk of the suspects, but other former Yugoslav republics have been far from enthusiastic. Even now, the Croatian coast is dotted with billboards glorifying former Croatian army lieutenant general Ante Gotovina, currently on trial for launching an ethnic cleansing campaign against the Serbs in 1995. As Croatian human rights activist Zarko Puhovski recently noted: “The truth doesn’t necessarily heal and calm — more often it causes hurt, anxiety and anger.”
As for the vaunted international community, the indictments were always the easy part. Actually bringing these thugs to justice would involve real, dangerous work. Mladic and Karadzic, for example, are still at large because no one has ever seriously gone after them. The tribunal doesn’t have its own intelligence and police officers to locate and apprehend the suspects; it has to ask individual countries to lend them these resources.
The tribunal itself is hardly blameless. From the beginning, it has been hampered by all the usual flaws that bedevil any U.N. body: too much red tape, inefficiency and split loyalties. But the real responsibility lies with the great powers — the United States, Britain and France. In her book, former prosecution spokeswoman Florence Hartmann describes in detail how these three nations have blocked the tribunal’s investigations whenever its probes have collided with their perceived national interests, often to prevent certain unsavory liaisons with Balkan warlords from coming to light.
Most often, expediency has trumped justice — something nations trying to bring peace to Darfur will have to deal with now that Bashir has been indicted. In the former Yugoslavia, some of the worst war crimes suspects have retained high positions in the military, police or political structures long after the war. Karadzic and Mladic lived openly in Bosnia for several years after they were indicted in 1995, when Bosnia was essentially occupied by NATO forces. Mladic was even in charge of implementing the military part of the 1995 Dayton peace agreement, working closely with NATO officers. Milosevic, meanwhile, was indicted in 1999 but continued to serve as Serbian president until late 2000. Haradinaj was prime minister of Kosovo when he was indicted in 2005.
One of the biggest problems for the prosecution has been protecting witnesses. I have some first-hand experience in this matter. In 2002, I was the first Serbian journalist to testify against Milosevic. I received threats as a result, and nationalists at home launched a defamation campaign against me. A year ago, a hand grenade blew up outside my bedroom window. It turned out that the prosecutors had placed me on the witness list against former State Security chief Stanisic without telling me. “We forgot,” a member of the prosecutor’s team told me. I told her that they should forget about my appearing in court.
While many of the tribunal’s failures have stemmed from its own inadequacies, it was the 2005 Security Council decision to impose a “conclusion strategy” and severely limit the court’s shelf life that dealt the final blow. From that moment on, the best and the brightest among its staff started looking for new jobs, while those who replaced them have often been underqualified. Many of the judges in the ongoing trials have never spent a single day in a criminal court in their home countries — they come from universities and international law institutes.
Despite everything, the tribunal has done some good work. More than 700 bad guys have been put behind bars. Meanwhile, former Yugoslav countries have set up their own war crimes courts, although these are still too feeble and subject to political pressures to try big cases, such as those of Karadzic or Mladic.
There are two ways to proceed from here. One is to declare the tribunal a failure and refrain from setting up similar courts in the future. The other is to learn from past mistakes.
One key lesson: Countries emerging from conflict need swift justice, not decades of tedious trials aimed at establishing comprehensive historical truth. That task should be left to historians. Instead of casting a wide net and spending years examining every single fish, future tribunals should focus on the worst cases with the strongest evidence — and process them quickly, before politics steps in. And if this raises some eyebrows among legal experts, so be it. Human justice is imperfect, but no justice is much worse.