Why Insist on the Surrender of Ratko Mladic?

By Timothy William Waters, a visiting professor of law at the University of Mississippi,worked in the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia from 1999 to 2000 (THE NEW YORK TIMES, 12/05/06):

I DON'T think Europe should insist on arresting Ratko Mladic, the Bosnian Serb general accused of war crimes. That's hardly the side of the debate one wants to be assigned, because General Mladic — described as the engineer of ethnic cleansing at Srebrenica and Sarajevo in the 1990's — should be arrested and handed over to the United Nations' war crimes tribunal. But why might it not be a good idea for Europe to insist on it?

There are good arguments for linking Serbia's entry into the European Union to General Mladic's arrest, but the union isn't making them. Instead of having an open-eyed debate about the benefits and costs of arrest, Europe is making three lazy assumptions about the role of international justice in transforming societies.

The first is that arresting a war criminal is a small price to pay for European integration. But try this out: not arresting a war criminal is a small price to pay for European integration. The difference is who pays. If Europe wants integration, it could help Serbia make progress on reforms by not insisting on linkage.

Linkage might compel General Mladic's arrest and jump-start normal politics in Serbia, but it also risks backlash and delay; in fact, talks have now been suspended. How important is General Mladic's arrest balanced against the integration of 8 million people in a region that badly needs stability? Against the decisions that must be made regarding independence and constitutional reform in Montenegro, Kosovo and Bosnia, in which Serbia's role is critical? It is possible that insisting on "Mladic or bust" will make bust more likely.

The second assumption: General Mladic's arrest is necessary to prove that Serbia is serious about transforming itself. But is extracting General Mladic under pressure going to change Serbian values?

Rather than linking talks to one arrest, the European Union should ask if a deeply brutalized society like Serbia's is a worthy partner for integration, regardless of the disposition of any one war criminal. Making General Mladic a totem for what Europe really needs — Serbia's transformation — stunts the union's ability to understand and encourage that process.

Fixation on General Mladic is of a piece with the naïve thinking behind much Western foreign policy from the Balkans to Baghdad. Similarly optimistic claims were made when former President Slobodan Milosevic was arrested, but five years later, Serbia's politics still haven't advanced enough. Oh — maybe that's because we haven't gotten General Mladic.

Then there are the advantages to not insisting. Negotiated reforms could begin in earnest, and integration might make the Serbs eventually turn their backs on General Mladic and what he represents. How much better for reconciliation if the Serbs spit out General Mladic on their own, in shame and disgust, not because they see his surrender to The Hague as the only way to get their hands on 30 euros of silver.

A third assumption underlies the other two: that Europe's demands are natural and uncontroversial and only recalcitrant Serbian nationalists don't get it.

But denying the discretionary nature of these demands stifles debate about real costs. Europe claims that it is Serbia that is choosing isolation and stagnation, but these costs are determined by Europe. For reasons most Europeans do not agree with, General Mladic's arrest is controversial in a Serbia otherwise eager to integrate. Is one war criminal's arrest really worth pushing Serbia back into the dark? There's no easy formula for deciding where to draw the line, but the calculation is not helped by soporifically pious pronouncements about the necessity of linking a nation's fate to one man's, nor by pretending that Europe is not imposing the terms, however just.

Serbia's integration into Europe is vital, and that is precisely why Europe needs a rational debate about what it should and should not ask of Serbia. The effect of the present policy is uncertain: Serbia's normalization might be set back by General Mladic's arrest or, as has now happened, by a too hasty insistence on it by outsiders. Precisely because Serbia's integration is vital, both to Serbia and to Europe, Europe should consider if it really must be delayed.

The mania for General Mladic partly comes of our need for a war criminal because the last one, Mr. Milosevic, so recently and inconveniently died. General Mladic's arrest had already been on the agenda, but the chief Balkan butcher's departure added a certain frisson to calls for the next-worst-thing's incarceration. It's not clear what that has to do with changing Serbia, but it's worth asking what we want General Mladic for.

Because we want a war criminal, badly. And it doesn't matter what it might cost.