Bosnia: the search for truth and justice will continue outside of court

Trials deliberating on mass atrocities are like not like any other trials. They are held, as any other criminal trial is, to deliver justice to victims and to punish perpetrators and mete out punishment and, by doing so, to deter—or rather, to control—the commission of crime in societies. But, unlike domestic criminal trials, trials dealing with mass atrocities are invested with greater expectations than simply administrating justice or delivering judgements. They are also supposed to contain an extralegal purpose: to establish truth about a conflict, to create a historical record, to contribute to the creation of historical narratives, and to help shape our collective memory.

On 22 November 2017, the judgement of General Ratko Mladic before the International Criminal Tribunal for former Yugoslavia (ICTY), attracted a huge crowd of journalists, politicians, interested observers, and survivors of the crimes alleged to be ordered and committed by General Ratko Mladic.

The judgement rendered some 22 years after Mladic was first indicted for war crimes, breaches of customs of war, crimes against humanity and the crime of genocide, reveals the biggest weaknesses of international justice: its slow pace.

Is delayed justice, justice at all? After being a fugitive for nearly 17 years, Mladic arrived at The Hague in a poor physical and mental state, raising doubts about whether he would be eligible to stand trial after all.

His trial lasted over three years and was considered—by ICTY standards—an efficient one, given that some trials lasted far longer. From the closing arguments that were held in December 2016, it took a Trial Chamber of three judges almost a full year to deliver a judgement and render a sentence. 

In the meantime, the victims feared that Mladic would not survive long enough to hear the judgement. If he had died before the judgement, any time from the closing arguments until judgement day – the entire effort to indict, apprehend and try him would have been in vain.

Mladic appeared in court, a shadow of the omnipotent commander he once used to be. His contempt for the court and his victims remained unchanged, and his insistence not to hear the damning words of his guilt showed a man who could not bear to deal with the consequences of his actions. The expectation was—as others accused had done—to look back, reflect, and show remorse or even repent. His reluctance to even listen showed his unwavering belief in Serb nationalism, and the “right” of Serbs to conquer “Serb lands” - where hardly any Serbs lived.

Justice delayed, is justice denied

The long awaited judgement did not bring the catharisis many survivers expected or craved, and it did not bring closure for those trying to move on from that chapter in their lives.

It is not the life sentence—the highest possible sentence at the ICTY—that was disappointing, but rather the findings of the judgements that did not contribute to a greater understanding of the truth behind what transpired in Bosnia from 1992 to 1995.

Why and in whose name did all of this happen?

The judges failed previously, in the Karadzic judgement, to determine that the genocide did not happen only in Srebrenica in 1995, but that the process for genocide had already begun in 1992 in several municipalities in the north of Bosnia.

The hopes that the Mladic judgement would be different and would at least determine that  a genocide took place in the Prijedor municipality were based on the discovery of mass graves in the vicinity of Tomasica, and was included in the Mladic indicment. Mladic was aware by 1993 of 5,000 Bosnian Muslim victims, most of whom were killed in the north of Bosnia, in the so-called Posavina corridor area.

Another disppointment has been that Mladic’s crimes were not connected by the Joint Criminal Enterprise, with Belgrade. That cannot be true because General Mladic was not just Chief of Staff of the Army of Republika Srpska (VRS), but he was also Commander of the 30th Personnel Centre in the Army of Yugoslavia (VJ). This centre, that came into existence in 1993, provided manpower, logistics, and coordination between the VRS and the VJ with General Mladic as its uniting force.

This judgement will close the doors for the ICTY and will shape the legacy—potentially in a positive way—of the ICTY as a legal institution founded with a great promise of justice and protection for the victims of the Bosnian war.

In reality it did not protect people from further crimes. Its foundation in May 1993 did not deter the Serb armed forces from continuing its military campaign in Bosnia and Herzegovina - and in fact some of the gravest crimes occurred two years after its foundation.

General Mladic was first indicted on 24 July 1995, together with Radovan Karadzic the war-time President of Republika Srpska, in the aftermath of the fall of Srebrenica - the Bosnian Muslim enclave that fell on 11 July 1995. But the ICTY indictment against Karadzic and Mladic did not prevent the Serb armed forces from taking over Zepa, on 25 July 1995. Both towns are now part of the Republika Srpska, a political entity recognised by the 1995 Dayton Accords that divided Bosnia and Herzegovina and effectively ended the Bosnian war.

The Dayton Accords recognised the territorial conquests by Serb armed forces in Bosnia and Herzegovina, but at the same time it compelled the signatories of the agreement to cooperate with the ICTY.

Both, Karadzic and Mladic, went into hiding in 1996 and enjoyed protection from Serbia’s political establishment during Slobodan Milosevic’s tenure, but also after his fall from power in 2000. Both men were eventually aprehended on Serbian territory and tried at the ICTY: Karadzic in 2008 and Mladic in 2011.

The Bosnian search for justice continues

Bosnian Muslims have been the principle victims of the crimes committed by the Serb armed forces between 1992 and 1995 and the community’s trust in the international community has not wavered. They have been loyal citizens of Europe, believing in its norms and values and have aspired to gain membership of to the EU. For the survivors and the victims’ families, the violation of their support and trust has amplified their disappointment over the judgement.

Bosnian Muslims have been victimised on three different levels: first, their state has been divided territorially following the Serbian military conquests that were cemented in the Dayton Accords; they were victims of genocide for which they gained only a partial recognition in criminal courts and hardly any reparatory justice to restore their dignity; and lastly as an ethnic group they are now divided between a Federation (a territorial entity of Bosnian Muslims and Bosnian Croats) and the second entity - the Republika Srpska.

In Republika Srpska they are reduced to a minority but without the rights a minority should enjoy. They are treated as a majority yet their children have to learn Serbian in schools in Republika Srpska's territory.

The ICTY did not bring the needed and long awaited legal justice to the survivors, and the search for truth will continue outside of the courts. Luckily the judges and the lawyers do not have the last word. 

The moment has come to use everything the ICTY has produced in its archives and to continue the search for political and historical justice.

What we need is for humanity to restore the dignity of the people who were murdered simply because of their ethnic and religious identity.