Now, the post-Mladić era: Four thoughts

There are a lot of questions to be considered in the aftermath of the delivery of the ICTY’s last trial verdict. Here are some thoughts on four of them.

1. Genocide

The full text of the verdict has not yet been published. When it is, it will probably be somewhere around a thousand pages requiring careful reading. In the meantime it will be necessary to divine what can be divined from the eleven-page summary.  Most attention will go to the judges’ reasoning on count 1, for genocide beginning in 1992 in six municipalities. On this count the chamber decided to acquit Mladić, but did convict him of several counts of crimes against humanity. It will be interesting to see their reasoning in detail. According to the summary, they did find on the one hand that “certain perpetrators […] intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group” but did not agree that “the targeted part constituted a substantial part of the protected group.” So they found intent (which the chamber in Karadžić did not) but introduced a standard of scale (which is drawn from the Genocide Convention, but is new in court decisions).

Writing in Balkan Insight, Jelena Subotić described the acquittal on the first genocide count as „a shame and a missed opportunity.”  To the degree that this is the case, it is so because the opportunity that has been missed is the opportunity for the court to offer, from an authoritative position, an interpretation of what the conflict was about, and that the purpose of some of the combatants (VRS and their sponsors in particular), was to forcibly change the population in order to bring it in line with their horrifying ideas. They did not take the opportunity, leaving the ICTY with a bizarre narrative, that there was a war that lasted three years during the course of which one genocide took place toward the end, which did not correspond to the overarching goals of any participant. As Florence Hartmann points out, “no genocide in history happened over five days in summer. Genocide is a process.”

Overall I would tend to agree with these critics: it would have been both desirable and sensible to see a conviction on the first count of genocide. At the same time, having reviewed the evidence in detail, it is not difficult to understand why the judges saw a qualitative difference between the municipalities and Srebrenica. The difference relates not only to the scale but also to the purposiveness of the violence and multiple declarations of genocidal intent. And it probably bears observing (again) that a conviction for crimes against humanity is not at all a cop to minor charge.

Context is important here. There is not a lot of jurisprudence on genocide, and the issue is young. Although the Genocide Convention came into force in 1951, nobody was convicted under it by an international court until 1998, when Jean-Paul Akayesu was sentenced. Aside from the convictions for Srebrenica, international courts have been hesitant to deliver convictions for genocide – the subtext of nearly every verdict seems to be “please do not bring us a lot of genocide cases.” A result of this has been a growing gap between what social scientists consider to be genocidal processes and practices (which is sometimes very broad) and what lawyers consider to be genocide (which is consistently very narrow).

If the problem were only a legal problem, it would be nearly meaningless. The substantive difference between genocide and crimes against humanity is small enough that it is worth asking why it is necessary to have genocide as a legal category at all (personally I am not fond of the concept, as it recapitulates the bigots’ habit of reducing people to their ascribed ethnic identities). But it is not a legal problem; it is a political one. The reason there is insistence on the category of genocide is that creates a status of victimhood that can be transformed into political capital. A basic review of Marx (by way of Bourdieu) tells us that the difference between money and capital is that capital is money that takes on a life of its own. As with any life, we may want to ask ourselves whether it is the life we want.

 

2. The international character of the conflict

Another point on which we will want to see the full reasoning of the judges relates to the involvement of the Republic of Serbia in the violent establishment of Republika Srpska. While the judges in the Karadžić case explicitly rejected the contention that Serbia participated in the joint criminal enterprise, the Mladić judges did so implicitly, by not naming names (in the summary at least – we have yet to see the full verdict). But they did it with an interesting exception. In discusing Mladić’s culpability for the genocide in Srebrenica, they said: „He was in direct contact with members of the leadership in Serbia and members of the General Staff of the army of the Federal Republic of Yugoslavia to ensure that the military needs of the VRS were met.”

The fact is that the Tribunal has not staked out a clear position on the involvement of neighbouring states in the violence in the violence in Bosnia and Herzegovina. In the cases where they had an opportunity to stake out a clear position, those of Momčilo Perišić and of Jovica Stanišić and Franko Simatović, the effort fell victim to Theodor Meron’s bizarre legal experimentation. There is no recourse in the Perišić case, but there may yet be a resolution in the case of Stanišić and Simatović, which has been sent back for retrial. In the meantime Meron’s Rosemary’s baby of a legal standard has been rejected by every court that has reviewed it.

This leaves a strange anomaly in the Tribunal’s narrative. The only instance in which they have a ruling determining that a neighbouring state intervened in the violence is in the Herceg-Bosna case, where the trial verdict names officials from Croatia as participants in the joint criminal enterprise to establish an ethnically homogeneous entity in Herzegovina (there are similar implications in the Blaškić  and Kordić cases). This case is set for its appeal verdict next week, and we will see whether this finding will stand.

A judicial record that shows intervention only by the side that intervened less makes for a problematic historical record. It is a good sign as to why you do not want to leave the business of generating social and historical accounts to lawyers, any more than you want a sociologist or historian defending you in court.

 

3. «Serbs»

In their closing arguments, Mladić’s defence made an effort to argue that by charging Mladić the prosecution was charging all Serbs. They did this not metaphorically but literally, arguing that:

The Prosecution wants to assert strict liability for everyone who is Serbian and everyone who had any position within legitimate Serb government, civilian and military organs

And seeking to:

remind the public, of which the non-Serbian portion of the public have perhaps already convicted our client in their minds upon reading of the indictment, that the Prosecution’s indictment and policy of collectively blaming all Serbs of being part of a JCE and then blaming General Ratko Mladic for all crimes ever committed by any Serbs, known or unknown, is inappropriate.

Politicians from pro-genocide parties tried a similar approach after the delivery of the verdict. This ranged from the retroactively moderated Serbian president Aleksandar Vučić, who said the day of the delivery of the verdict was “a difficult day,”  to outre rodent flinger Boško Obradović and secondhand tobacco dealer Milorad Dodik,  to whom Mladić is a “hero.” The syntagm was repeated in international media where people who know better were once again told that “Serbs” think this, “Bosniaks” think this, and all that Balkan Ghostie bla bla bla.

But a funny thing happened on the way to the cross burning. The exotic peoples declined to conform to the stereotype. Except for somewhere between 20 and 30 people who turned up for a support rally in Belgrade. Outside of the wilfully misinformed, a lunatic fringe, and a small coterie of people holding political power, Serbs like everybody else in the world are perfectly well aware of who Ratko Mladić is and what he did. They neither like him nor feel represented by him. The idea that vicious nationalists are authentic representatives of national cultures is an ugly stereotype that has to die.

What do the nationalist authoritarians know and understand about Serbia and Serbian culture? Have they understood the important cultural inventions of Borislav Pekić and Danilo Kiš? They have not. Do they know why Jelena Šantić spent the last years of her life resisting their aggression? They have no clue. Do they understand the inspiration that Aleksa Šantić took from sevdalinka? They thought of that lyricism as their enemy. Did they understand a word or a note that Disciplina Kičme and Boye were trying to tell them? Nisu smeli doživeti tu radost njihovih lepih pesama. Did they know anything of the original contributions of Yugoslav and Serbian theorists to the development of Balkan feminism at a time when the rest of the Communist world marginalised the questions involved? No, they made sexual violence a part of military strategy. Do they know who Ksenija Atanasijević was? They never met an educated person they did not want to liquidate.

Their understanding of Serbs is drawn from an unctuous melange of the mediocrities who supported them and Ljotić-era myths. The caricature that has been produced out of it has, sadly, come to be equated with a „Serbian perspective“ among similarly clueless internationals. Their power over media and cultural institutions has meant that this perverse mythomaniacal parody of an actually existing culture is promoted everywhere. To blame their crimes on the Serbs that they imagine but do not know is like blaming the murders committed by the serial killer David Berkowitz on the „Sam“ who existed in his head.

These people have fuck all to do with Serbs, aside from the fact that they have been holding them hostage for the last 27 years. They do not like Serbs, they do not treat them well, and they do not respect them.

 

4. Justice and Closure

Everybody who has observed the ICTY has had moments in which they have been critical, sometimes very critical, of its work. But in this case, something has to be said. Sometimes the Tribunal does some things right. This trial was done right. It was a well organised trial, with minor disruption, good quality of evidence and argument, and ample opportunity for the presentation of a comprehensive defence. The verdict was, if not satisfying to everybody, understandable. And the life sentence given to the defendant was consistent with the overwhelming character of the evidence and the obvious gravity of the crimes. Although there may be reason to be disappointed with the acquittal on the first genocide count, the maximum sentence seems to have compensated for this, and there has not been the level of complaint that was heard after the delivery of the Karadžić verdict. It is possible to say that justice (of an imperfect kind) has been done.

The reason this does not bring closure to the experience is that justice does not begin and end with putting a convict in prison. The consequences of the crimes that were committed still dictate a large part of the daily experience of many people in the region. The multiple efforts to conceal evidence of crimes mean that many people’s fates remain unknown. Years of perpetrator-based justice that involved communication with state authorities and neglect of victims mean that needs arising from the violence are still unmet. The absence of meaningful political change means that power is still held by people soaked in complicity. The lack of candour about facts and public engagement means that myth and ideology have planted their butts on the seats that should be occupied by history, dialogue, and understanding.

For years politicians believed that courts would do the cultural and political and spiritual work that had to be done instead of them. They cannot and will not. The last charged suspect has now been sentenced, and no healing will come to any of these societies until attention is redirected to uncovering facts, to repairing damage done to people, to open dialogue unpoisoned by the ideologues, and to mutual recognition. Sad svi na svoja radna mesta.

 

Following the Mladić verdict, 22.XI.2017

I’ll be following the delivery of the verdict and surrounding events and making notes on it on this periodically updated post (what is popularly called a liveblog, I guess). For people wanting to watch the reading of the verdict, the courtroom video feed is here, and it begins at 10:00 (9:00 here in the UK). Check back occasionally for updates and comment.

First I will go walk my dog, who steals a snack from time to time but has never committed any genocides.

I’ll be timestamping updates, using GMT, so all you people in the non-Brexiting lands will think the updates were made an hour earlier.

0841

Prediction time? It is probably never a good idea to make predictions, but when courts are in question, the best way to predict what they will do is to look at what they have done before. Here is the response I made to the Karadžić verdict, where the charges were very much like the charges in this case.

The defence basically had three arguments in this case: 1) an ideological appeal, 2) an attempt to deny the facts, and 3) an argument about responsibility. Let’s look at them one by one.

The ideological appeal was an effort to justify the crimes by asserting some elements of the context and character of the war. The judges will not take it seriously, as it is not a legitimate legal argument. The lawyers know this. It was an appeal to the regional media.

The factual argument was not offered substantively or seriously, and the defence experts were largely discredited. The defence offered a factual argument because they had to. They were aware that it would not get far given the overwhelming evidence.

The argument about responsibility is one that the judges will have to consider seriously. Basically it had two elements: 1) to deflect responsibility upward, and 2) to deflect responsibility downward. The upward part had limited application — it meant arguing that as a military commander he was not responsible for political decisions. Fundamentally this means arguing that if Mladić is not culpable for something then Karadžić is. The downward part meant arguing that crimes were committed by police or paramilitary forces, or by lower-ranking officers acting on their own (this is what is really meant when the specious contention is offered that “the whole people” is being charged). Here the prosecution was able to present good evidence that Mladić kept himself well informed and maintained a consistent chain of command.

The defence is also expecting a conviction. This is why they have spent the last several days playing games about the accused’s health and whether he would turn up for the verdict or not.

0855

The prosecution has high stakes in this case, as it is the last opportunity they have to convince the judges to rule that the overall goals of the war were genocidal. This is the importance of the second genocide charge related to “the municipalities.” The effort did not succeed in the Karadžić case, which means that now you have the Tribunal offering a strange narrative that there was a three year war over a large territory where genocide occurred only once, in only one place.

One major difference between this case and the Karadžić case is that in this case the prosecution was able to present the evidence on burial sites and attempts to hide evidence of killings from lake Tomašica. This allowed them to use Prijedor as a dramatic example of genocidal process, and to trace events all the way from discrimination (the firings, the armbands) to persecution (the camps and torture) to killing (the burial sites). This will be persuasive to social scientists as a description of genocide. But we have to wait to see whether it will be persuasive to the judges.

0900

Another difference between the Karadžić and Mladić cases involves the character of the accused. Karadžić was a grifter, whereas Mladić was a sadistic brute. This means that Mladić was not as cautious as Karadžić was in making his public statements, especially with regard to his intentions. Karadžić laid a ground for plausible deniability (albeit unsuccessfully). Mladić didn’t.

0905

Consider supporting the Srebrenica UK charity. This is a group of people interested in maintaining the memory of events and working to prevent ethnic violence in the future. (Declaration of interest: I am chair of the charity’s academic advisory board).

0909

Ratko Mladić showed up to hear the verdict after all. He is fiddling with his fingers and squinting in a very convincing performance of a poorly adjusted sociopath.

0911

They are beginning with the municipalities charge. As in Karadžić, the court is affirming the facts as presented by the prosecution. But this does not mean that they will convict on the charge of genocide. They may, as they did in the Karadžić case, convict on crimes against humanity.

If this happens, many people will take it as a disappointment. This may or may not be justified. Which charge he is convicted of is an aretfact of what judges are prepared to do at a particular moment in time. The documentary record remains, and is open to other interpretations.

0913

GUILTY of exterminations as a crime against humanity.

0916

GUILTY of deportation and forcible transfer.

0917

When Judge Orie says “the chamber found,” this means that the decision was unanimous. It indicates the overwhelming character of the evidence and effective management of the panel by the presiding judge. In his controversial decisions, Meron never got unanimous chambers.

0920

Now, the genocide charge for the municipalities. “A majority” finds that there was genocidal intent in some municipalities. But that not all victims constituted a “substantial part” of the group to be destroyed.

This is the only charge on which there was any doubt as to how the Tribunal will rule. They are going to convict on all the other counts.

0924

As expected, they are convicting on charges related to the establishment and maintenance of an atmosphere of terror in Sarajevo.

0926

Now, the Srebrenica genocide charge. Having already convicted several of Mladić’s subordinates for genocide in Srebrenica, the judges will not fail to convict their commander.

0928

Balkan Insight is also doing a live blog.

0931

If you want to know more about Srebrenica, the Sense Agency has assembled a useful online exhibit: Srebrenica: Genocide in eight acts.

0936

As expected, GUILTY for Srebrenica genocide.

0938

Now to the specific responsibility of the accused.

0940

Chamber finds that the overall JCE in the municipalities charge did not include genocide.

0942

Ratko wants to go the toilet. Will he try to wash his hands?

0947

They are taking a little toilet break, so to sum up so far: no surprises. They are not convicting on the municipalities charge, which will disappoint many people but was predictable.

It is important to keep in mind that the word of the judges is an opinion at a particular moment, and is not the last word. It is not the last word by judges, as both sides will definitely appeal. But more importantly, the contribution of ICTY is less in the collection of judicial opinions and more in the evidence it has collected and published. This evidence can be used to establish a number of facts outside of the realm of law, and build a comprehensive understanding of the events that accompanied the violence of the 1990s.

Some people will say that justice has been done and some will not. I would offer this: justice does not depend entirely on whether some people serve prison sentences or not. It depends also on what happens in the societies that remain affected by violence. Will people build and share complete and inclusive accounts of the past? Will the experience of victims be recognised and honoured? Will the necessary help be provided to the families that need it? Will people in positions of power put sincere effort into assuring that the conditions that lead to the kind of violence that happened do not emerge again?

So far the answers to most of those questions have been negative. It might be argued that an imbalance of attention meant that for years people concentrated on what perpetrators would be tried and convicted, and that this displaced attention away from the needs of people in the social environment. Justice depends a little bit on what happens to insane old Mladić and whether his hospital bed will be in a prison or outside of one. It depends a lot on what efforts people make and do not make to build an overall atmosphere of justice.

0959

Ole Mladić is a slow pisser. If he killed as slowly as he pisses, people could have been much safer.

1005

This marathon pisstake might be Mladić adopting the Šešelj strategy of disrupting proceedings by any means possible.

1009

At the Nuremberg trials, special precautions were taken to reduce the risk of suicide by defendants.

1013

Is the court going to have conclusions regarding the support given to VRS and its dependents by Serbia? The people writing the live blog at N1 note that the important names have not been mentioned.

1027

The court is now back in session. Defence lawyer Ivetić says that Mladić has high blood pressure. Requests halt in proceedings or waiving of reading of the summary verdict. The request is not accepted.

1031

Mladić is adopting the Šešelj strategy of repeatedly shouting “sve je lažno!,” etc. Judge Orie orders him removed from the courtroom. This is the defence implementing “Plan B.”

1033

Orie assures everybody that Ratko has been provided with a sofa.

1036

“He was in direct contact” with VJ and political leadership of Serbia. This is important, folks.

1041

Note on the physical removal of Mladić from the courtroom: for a demented evildoer with hypertension, he’s a sprightly bugger.

1047

Note is made of the fact that the killings documented in the famous Treskavica film were not committed by VRS.

1050

N1 is reporting on the appearance of some pro-Mladić posters. I’ll state an opinion here: I think the perception that he has massive popular sympathy is a stereotype, and is probably overstated. This is probably a vocal minority. No national group is less or more evil than any other national group.

1054

You hear Orie repeatedly saying “the chamber found”? That means that the presiding judge achieved consensus on centrally important issues. That is what a competent presiding judge does. Meron doesn’t.

1059

Guilty on counts 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.

Not guilty on count 1.

Remember, we are still in early days of jurisprudence on genocide, and it has been restrictive so far. This may not always be the case.

1102

“Most of the factors” raised by defence as mitigation “have little or no weight.” Life sentence.

1103

Now it is time to wait for the release of the written opinion. This will probably be a very long document, but the part that will get the most attention is the judges’ reasoning on count 1, the “municipalities” genocide charge.