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Justice for Srebrenica

By Elizabeth Pond

None too soon, the moment of truth has come for Ratko Mladic—and, posthumously, for Slobodan Milosevic. This moment fully justifies the controversial United Nations establishment of the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) two decades ago.

On Wednesday the trial of General Mladic opened at the Hague for crimes of genocide by Serb forces in the murder of some 8000 unarmed Bosniak (Bosnian Muslim) boys and men at Srebrenica in 1995, and also for genocide in the medieval three-year siege of Sarajevo that killed 12,000 Bosniak civilians in daily bombardments of mortars and artillery. Mladic is charged individually as the commander of both operations in the savage Balkan wars of the 1990s, and as a member of a "joint criminal enterprise" that included one-time Serbian strongman Milosevic.

Slobodan Milosevic, the first sitting head of state to be indicted and tried in an international criminal court, died of a heart attack in 2006, fifty court-hours short of a verdict, after five years of investigation and trial. If the court now convicts Mladic, it will morally, if not legally, convict Milosevic as well. In doing so it will have fulfilled its primary task of ending the long-standing global impunity of senior officials for genocide and war crimes physically committed by lower-ranking soldiers under their command.

Already the court can claim other achievements, says Gerhard Werle, the author of a standard textbook on international criminal law and professor at Berlin’s Humboldt University. It established the standard of individual rather than collective guilt for war crimes. It convicted enough high-level officials among the 161 accused to give victims’ families more than merely symbolic justice. It clarified that international laws of war apply to internal domestic as well as international armed conflicts. For the first time it codified systematic rape as a crime against humanity. And the tribunal helped new Balkan national war-crimes courts build their own capacity to handle complex and emotive trials.

Following the precedent of the Nuremberg Trials of Nazis a half-century ago, the Hague tribunal further compiled a trove of documents about the Balkan wars that historians will be mining for decades to come. In these terrible wars waged by Serb, Croat, and Bosniak armies and militias alike primarily against alien civilians, the tribunal established as legal fact the special brutality of Serb forces in the 64 convictions it has handed down so far. As Yugoslavia disintegrated, Serbs swiftly used their monopoly on heavy weapons to seize two thirds of Bosnia and a third of Croatia. However, since they did not have the manpower to rule the occupied territory, they resorted to tactics of attrition—with concentration camps; mass "ethnic cleansing;" the sieges of Sarajevo and other UN so-called "Safe Areas;" and Europe's worst atrocity since World War II, at Srebrenica.

Most significantly perhaps, the tribunal for the first time fleshed out the definition of genocide of an ethnic community "in whole or in part" in the Genocide Convention. As ICTY judges specified in the conviction of Serb General Radislav Krstic, "the part targeted [for elimination] must be significant enough to have an impact on the group as a whole." The pre-determined murder of thousands of Muslim men and the inhumane ethnic cleansing of thousands more Muslim women and children at Srebrenica in an effort to terrorize other Muslims into fleeing the area, thus constituted genocide, as it made a substantial contribution to the "destruction of the entire Muslim population of Eastern Bosnia, including ...the failure of the population to live and reproduce normally."

What is still unclear is whether the Hague tribunal will succeed in promoting the ultimate reconciliation between warring parties that its founders hoped to advance by establishing individual rather than collective guilt. In the short term, the court has intensified ethnic confrontation by the adversarial nature of trials. Yet at the same time it has provided a judicial alternative to carrying on armed feuds. Certainly the Balkans is farther from any return to 1990s'-style violence than either Iraq or Afghanistan is from a return to its own more recent violence.

To be sure, in various surveys since 2003—when Serbian Prime Minister and conciliator Zoran Djindjic was assassinated and Serb chauvinists set the political agenda for the next seven years—a majority of Serbs have viewed the Hague tribunal as being biased against Serbia. The Belgrade government was also unwilling or unable to arrest Ratko Mladic and send him to the Hague for 16 years before finally extraditing him a year ago. Yet Serbs' fatigue over lost wars has dampened popular militancy since 1989, when a million ecstatic fans cheered Milosevic's bellicose talk of war at Blackbird Field in Kosovo, and even since 2006, when a dwindling 60,000 to 80,000 turned out to pay respects to Milosevic's coffin in Belgrade.

Moreover, current Serbian President Boris Tadic (who faces a re-election vote next Sunday) has twice visited Srebrenica to express condolences over the 8000 Bosniaks killed there. He has further established a solid working relationship with Croatian officials. Independently, Serbia's own War Crimes Chamber has set the best record of all national war-crimes courts in the Balkans, indicting more than 130 persons (some 80 percent of whom are Serbs), convicting 55, and acquitting seven so far.

On the popular level too, the once overwhelming Serb denial of any massacre at Srebrenica has gradually yielded in the face of DNA and other evidence related to the murders that was provided by ICTY prosecutors and indefatigable Serb non-governmental advocates of peace and reconciliation. Obrad Kesic, an American businessman who maintains a keen interest in politics in his native Serbia, observes, "The majority view in Serbia is that [Srebrenica] was a war crime, atrocity, and disgrace. In the mainstream I don’t know any serious politician or intellectual who denies that it happened."

Soccer hooligans in Belgrade may still wear T-shirts displaying the defiant face of Mladic as he looked in his Srebrenica heyday. But by the time the Hague tribunal judges give their verdict on Mladic and Milosevic, Serbs will be ready to move on.

*****

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Elizabeth Pond is a Berlin-based journalist and the author of Endgame in the Balkans.

(Photo courtesy of Efstavief Mikhail)

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