Blog: Jury is still out on Yugoslav war crimes tribunal
Professor Raymond Murphy of the Irish Centre For Human Rights at NUI Galway writes following the successful prosecution of Ratko Mladić.
Ratko Mladić, commander of ethnic Serb troops in Bosnia’s 1992-95 war, has now been convicted of genocide and jailed for life. But for years to come his victims and many others will continue to be unearthed across parts of former Yugoslavia.
About 8,000 people are still missing in Bosnia, 22 years after fighting ended; the whereabouts of some 2,000 Croats are unknown following its 1991-95 war, and about 1,600 people from Kosovo remain unaccounted for after its 1998-99 conflict.
The ranks of the missing, presumed dead, haunt this region of Europe. A place where Serb forces above all used industrial methods – manpower, backhoes, bulldozers and trucks – to move and hide the bodies of those they killed in hundreds of mass graves.
This modern method of mass murder demanded an innovative response from those who wanted to put names to remains that were often scattered among secret burial sites many miles apart – and to produce forensic evidence that could help convict the killers.
The answer came from the International Commission on Missing Persons, which saw after its creation in 1996 how traditional forensic practice struggled to identify the badly decomposed bodies that were being exhumed from mass graves.
The international commission, an intergovernmental body, set about developing a new DNA-based system. In 2000, it began taking blood samples from relatives of the missing and the following year made its first DNA match with bone from a mass grave.
This pioneering use of DNA technology has led to the identification of about 70 per cent of the 40,000 people who were unaccounted for after the implosion of Yugoslavia, and nearly 90 per cent of the 8,000 Bosnian Muslims murdered by Mladic’s men in the 1995 Srebrenica genocide.
“I think it’s been hugely important,” says Matthew Holliday, the head of the international commission’s Western Balkans programme.
“Our work enables closure for families. It is scientifically based and contributes to international justice and a historical record that is highly resistant to revisionism and denial attempts – it’s hard to deny what happened when you have DNA match reports.”
The international commission’s staff have provided expert testimony in more than 30 cases at the UN court in The Hague, including the Mladic prosecution.
Yet denial is still rife in Serbia and across the region. Thousands of people are still missing and hundreds of war crimes cases remain open, leaving the Balkans with open wounds that politicians could easily exploit to stoke hatred and division.
After 24 years and 161 indictments, the UN tribunal will close at the end of the year and the international commission – while continuing to work in the region – is moving its DNA lab from Sarajevo to The Hague.
The apparent downgrading of worldwide involvement in former Yugoslavia raises concerns that, for many victims, justice will be forever postponed.
“The UN court resulted in an abundance of evidence and material about the wars. I don’t know anywhere else in the world with as much documentation like this,” says Jelena Krstic of the Humanitarian Law Centre in Belgrade, which wants Serbia and its neighbours to continue the work of the tribunal.
“This is the time for us to apply all our resources and use the documents available to finish the job as soon as possible, and provide the basis for the reconciliation that everyone speaks of,” she told The Irish Times.
“But in the last couple of years you could say those trials are slowly dying in Serbia. It seems that someone wants to shut them down, at exactly the time when they should become more active.”
In 2016, Serbia’s war crimes prosecutors handed down just seven indictments and this year only one – and all those were based on investigative work done by the counterparts in Bosnia, says Krstic. Belgrade has not issued an indictment relating to the Kosovo war since 2014.
“About 28 cases are going, slowly, through the Serbian courts,” explains Krstic. “The prosecutor’s office says it has about 800 cases in its database … They have material to work on, but choose not to do it.”
Responsibility for atonement
No Balkan state co-operated fully with the UN court and all tried to shield their war crimes suspects. But Serbs committed most of the atrocities in the 1990s conflicts – including genocide – and so for many Belgrade has a particular responsibility for atonement.
Its leaders denounce the tribunal as “anti-Serb” however, and deny that the Srebrenica massacre was genocide, while allowing a convicted war criminal to teach at Belgrade’s military academy and feeding a narrative of victimhood and denial.
“Our research shows that the vast majority of people in Serbia don’t want to know about war crimes trials,” says Krstic.
“In schools, there is literally not a sentence about the war in Kosovo. Children learn that Nato bombed Serbia from March to June 1999 but there is nothing about the war crimes, deportations, rapes or mass graves,” she adds.
“In relation to the other wars the explanations are very ethnically biased – and of course the guilt rests on Bosnia and Croatia because they wanted to secede from Yugoslavia and Serbia wanted it to survive.
“I wouldn’t say its a process of forgetting; it’s a process of remembering the wrong narrative of the past. Maybe it would be better to forget than learn what is not true, that there was no war in Kosovo, that we didn’t have Srebrenica and so on.”
After the Mladic verdict on Wednesday, Serbia’s leaders urged their people to look to the future, not the past, while Bosnian Serb president Milorad Dodik – who has already banned his region’s schools from teaching about Srebrenica and the 44-month siege of Sarajevo – called Mladic “a hero and a patriot”.
The international commission will continue to help Balkan states find missing victims and evidence of war crimes, however, and a new European Union-backed court in The Hague devoted to war crimes cases from Kosovo will soon deliver its first indictment.
For Krstic and others, the EU’s role in the Balkans is now more vital. “The only thing keeping war crimes trials alive in Serbia is the EU accession process,” she says.
“I believe in the EU as a peace project. And it should be the first to see that peace in this region is not just about stability, but creating hope for the future. I’m not optimistic about domestic war crimes trials, but now it is all we’ve got.” What did the creation of the war crimes court achieve?:
Gen Ratko Mladic, the former Bosnian Serb commander, has been found guilty of war crimes and other serious violations of international law.
This was the last trial judgment to be delivered by the International Criminal Tribunal for the former Yugoslavia before its closure at the end of this year.
It is one of the most important trials conducted by the war crimes court to date. It also marks the end of an era for one of the most significant developments in international criminal justice since the Nuremberg and Tokyo tribunals established in the aftermath of the second World War.
However, apart from punishing some notorious individuals, what did the creation of the war crimes court achieve?
The backdrop to the creation of the court in 1993 was the mass killings, widespread and systematic sexual violence and ethnic cleansing that took place in the former Yugoslavia on a scale and ferocity not seen in Europe since the end of the second World War.
When the UN Security Council established the war crimes court, the aim was to put an end to what are sometimes referred to as atrocity crimes and to contribute to the restoration of peace. The jury is still out on how far it succeeded in its objectives.
At times the pace of international criminal justice seemed too slow and too expensive. Inevitably, international investigations and trials take time.
Although slow to get up and running after being established, its indictments, decisions and judgments have since generated significant comment and controversy. Not all of this reflected well on those responsible for the administration of justice.
Among its achievements is the extent to which the tribunal has expanded the frontiers of international law. In this way it can justifiably boast to have irreversibly changed the landscape of international humanitarian law. A central characteristic of such courts is the ability to prosecute private individuals for violations of international law. This principle is now well established in international law.
An overarching aim of the court was to pursue the most senior individual responsible for the atrocities that took place during the armed conflict in the former Yugoslavia. By doing so it was intended not just as a deterrent but also as a means to render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.
Recognising the role of victims, though still dismissed by some lawyers as a waste of resources, is now an accepted practice.
Success in this regard is difficult to measure, especially against the background of crimes being perpetrated today in Syria, Yemen and elsewhere. It may even be argued that fear of being held criminally accountable is a factor in the reluctance of some leaders to step aside.
However, impunity for atrocities has often inexorably fuelled the spiral of violence.
Looming in the background throughout the Mladic trial was the memory of the Milosevic case. The former Serbian president had managed to exercise such a degree of control that it often looked like he was dictating the pace and agenda of his trial. He then died of a heart attack before the verdict could be handed down.
International courts will only ever pursue a few selected, very senior individuals. The most effective deterrent remains a functioning domestic system to prosecute such offences.
Many states now have revised their national legislation and they have specially designated police units to investigate war crimes.
Nevertheless, the principal reason we need international courts is that states are often unwilling or unable to prosecute “their own”.
A significant weakness in the conduct of international trials remains the inequality in resources between the prosecution and defence teams, and the Mladic trial was no exception to this. A trial must be a forensic exercise to determine guilt or innocence and not be used for broader political purposes.
In this regard, the trial has been successful and the proceedings provide a record of one of the darkest chapters in Europe’s recent history.
The success of this ad hoc UN court also provided the final impetus to create a permanent international criminal court to try individuals for serious war crimes and similar violations of international law.
It is worth recalling the words from the Nuremberg tribunal that crimes against international law are committed by individuals, not by abstract entities, and only by punishing those responsible can the provisions of international law be enforced.
Ensuring accountability is important in itself and acts as a deterrent. It is also important because allowing impunity for atrocities can have serious consequences for international peace.