Ratko Mladic and the objectives of international criminal law
General Mladic's arrest in Serbia is an important milestone in the history of international justice. It comes at a time when the ICC has been very much in the news. Just recently, the ICC’s Chief Prosecutor announced he was seeking arrest warrants for Colonel Qaddafi, his son and brother-in-law to respond to war crimes allegations. Meanwhile, despite having an international warrant for his arrest on charges of genocide, Omar-el-Bashir continues to be hosted by regional countries. But what each of these cases highlights is the uneasy tension in international criminal law between its idealistic and pragmatic dimensions, between its legalistic rooting and the political context in which it operates, as well as between its varied objectives.
There is a long-standing debate about the purpose, or purposes, of international criminal law. Are cases there to set judicial precedent alone or to be punitive? Are they designed to deter future atrocities? Or are they part of what some call “transitional justice”, a contributing factor to reconciliation? Are they vehicles for social engineering, part of a process of “purging” societies of “evil ideologies”?
The ICTY itself, in an earlier sentencing of Drazen Erdemovic, the first indictee to enter a guilty plea for crimes committed in Srebrenica, defined its mission quite broadly:
The International Tribunal, in addition to its mandate to investigate, prosecute and punish serious violations of international humanitarian law, has a duty, through its judicial functions, to contribute to the settlement of the wider issues of accountability, reconciliation and establishing the truth behind the evils perpetrated in the former Yugoslavia. Discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process.
The last sentence, where mention is made of “cleansing hatreds” is remarkable. It defines the ICTY’s ambition as more than just establishing facts but contributing to a regional process of introversion aimed at shifting the mythologies of the region towards an objective truth. That, unfortunately, has not happened. Instead, Mladic was able to roam freely (and receive a state pension) for as long as he did because he tapped into, and became an icon for, a Serbian narrative of victimhood.
If he was arrested, it was not because this narrative is gone but instead because a purely transactional, cost-benefit analysis has taken hold in this new generation of Serbian leaders. The latter realised that EU membership would be blocked, not least by the Dutch, whose government had to step down because of the humiliation inflicted by Mladic on their peacekeepers in Srebrenica. European leaders congratulate themselves on how the EU’s proper incentive structure – promised economic and political windfalls – has led to this momentous event. And perhaps rightly so.
However, if the arrest is all it takes to guarantee a smoother accession process, EU leaders also need to realise that they are moving toward a more modest understanding of the ICTY’s objectives. By presumably renouncing on a process of regional introversion, the myths of victimhood are still there, under the surface. For now, the countries can say the atrocities committed were part of an impulsive, if not excusable, moment rather than an outgrowth of something more deeply rooted in the Balkans. The proponents of restorative justice would argue these are weak grounds on which to expand the European project.
It is worth noting that in many EU countries, Holocaust denial is a criminal offense. In keeping with this, the denial of the Armenian genocide is held up as a major barrier for Turkey’s entry into the EU. Perhaps the real test will not be whether Mladic was handed over to the ICTY but instead whether the Serbian government can officially recognise that genocide was committed in the fields of Srebrenica, instead of the sheepish apology produced so far.
