The uneven distribution of justice is the bane of any system that purports to be fair. The problems are made even more problematic when it comes to the issue of war crimes trials conducted by international tribunals.
Last Thursday, Radovan Karadžić, the Bosnian Serb leader of Republika Srpska during the Yugoslavian Civil Wars of the early 1990s, was convicted on all but one of 11 charges and sentenced to 40 years in prison. These comprised two counts of genocide; five counts of crimes against humanity, and four counts of violations of the laws or customs of war.
What impressed the Chamber was the role played by Karadžić and his military side arm, General Ratko Mladić, in Srebrenica. As the town fell, ‘the long-term strategy aimed at removing Bosnian Muslim population from Srebrenica, began to be transformed into a concrete plan to eliminate them.’ Karadžić, the judges claimed, was determined by 1995 to implement a ‘long-term plan aimed at the eventual forcible removal of the Bosnian Muslims in Srebrenica’.
A similar Joint Criminal Enterprise was found for Karadžić’s role in the bloody siege of Sarajevo, deemed ‘so instrumental … that without his support the SRK attacks on civilians in the city would not have occurred.’
To keep in the tradition of Balkan timing in terms of auspicious dates and historical events, the International Criminal Tribunal for the former Yugoslavia released its verdict on the 17th anniversary of the commencement of NATO’s bombing of Serbian positions in 1999. The attacks then, which also saw Serbian civilian targets feature across the country, was ostensibly to protect Kosovar Albanians.
The Russian approach, historically sympathetic to the Serbian position, casts a natural scepticism about the verdict. This is best reflected in the statement from the Russian Foreign Ministry. ‘The civil war in the former Yugoslavia in the 1990s and the NATO bombardment are a tragic chapter in world history. It is hard to imagine that only one side committed all the crimes in that war.’
One does not have to be an unrelenting relativist to make the point that the judgements of the ICTY have been inconsistent. When it comes to judging those who enacted plans and pursued them with conviction in the breakup of Yugoslavia, the record of the Chamber is distinctly slanted. A monster Karadžić might have been, but he had stiff competition in dividing the spoils of motley political entities in the name of ethnic purity. Joint Criminal Enterprises were sprouting everywhere.
Invariably, the Serbs have gotten the tougher end of the bargain in that regard, having been deemed historical villains when they had, in the past, been feted as historical sweethearts in the fight against fascism. The separatists, on the other hand, have received a softer hand. They, it has been found, were on the right side of history.
Several notable acquittals stand out. Many have similar organisational elements to the programs supposedly orchestrated by Karadžić. Croatian General Ante Gotovina, a celebrated figure of the Croatian resistance, was acquitted on appeal for his part in expelling Serbs living in Croatian territories of Yugoslavia in 1995 by the barest of margins: 3-2. His colleague in arms, General Mladen Markač, commander of the Croatian Special Police, was similarly acquitted.
To this day, Operation Storm, as it was termed, is deemed by some a stunning military success against Serb positions in the Krajina rather than a humanitarian catastrophe. It was, however, not deemed a Joint Criminal Enterprise. ‘This judgment vindicates that operation as a proper and just attempt to bring back that land into Croatia,’ claimed defence lawyer Greg Kehoe. The line between the expulsion and massacring of civilians, and military necessity, is a line rendered fine by spurious legal reasoning.
Ramush Haradinaj, former commander of the Kosovo Liberation Army, was also acquitted, along with such figures as Idriz Balaj of the Black Eagles unit in 2012. The chamber were satisfied that they had not been involved in a Joint Criminal Enterprise against Kosovo Serbs, Kosovo Roma/Egyptian, Kosovo Albanian or other civilians in the village of Jablanica in 1998.
Tribunals, to that end, are not good history-making bodies. They do little to order untidy records, forge conciliation, or heal the wounds that still seem fresh on otherwise dry paper. They suggest the identification of victors and losers, and the continuation of battle through other means.
The Yugoslavian Civil War of the 1990s was a re-run of unsettled scores from previous conflicts, history retold in the loop of violence. Having been itself born of violence characterised by deportations, executions and territorial arrangements, and held together by Marshal Tito’s forceful hand, it was only logical that Yugoslavia would ultimately perish in spasms of violent retribution.
To attribute sole responsibility to one agency, and even more to the point, to identify coherent grand plans selectively, is to fantasise about a false tidiness in Balkans history. Patriotism is often an alibi to brigandage and enterprising criminality. To identify pure motives in savage civil conflict while condemning others with clinical legal clarity is not merely negligent but impossible.