A Century of Impunity?
The 20th century’s morbid legacy of death and despair did not end with the First World War and the Shoah: the Holocaust claiming the lives of more than 6 million Jews and millions more Gypsies, disabled people and others deemed undesirable to Hitler and the Nazi State;
Just decades later in the 1990’s thousands more were raped and massacred during ethno-religious wars plaguing the former Yugoslavia, while genocidal killings in Rwanda bore witness to approximately 800,000 men, women and children, mostly of the Tutsi ethnic minority slaughtered by the Hutus within a period of 3 months.
With the start of the new millennium came the genocidal killings of the Yazidi people in Sinjar, Iraq by ISIS, and a brutal civil war in Syria that dragged on for nearly a decade, claiming hundreds of thousands of lives and driving over 6 million refugees to flee from the autocratic regime of Bashar Assad.
While today, the world is still reeling from the horrific killings of hundreds of Burmese citizens by the Tatmadaw , the recent butchering of Palestinian children and their families in Gaza by the Israeli Defence Force, and the incarceration of more than a million Uyghur and Turkic people in Xinjiang, facing what is a described by some as a cultural genocide:
ethnic minorities incarcerated, raped, tortured and forced to embrace the ideologies of the CCP; their only ‘crime’ being a people who profess the Muslim faith;
The crimson thread that runs through these shocking instances of State perpetrated atrocities is the reality that many genocidaires and war criminals remain unpunished by their own domestic courts applying a notion of the rule of law that has little to do with upholding justice for millions of victims of State atrocities;
Remarkably, only a small number of State leaders and their lower level political functionaries have ever been held legally accountable for the atrocities committed against millions in the years following the Nuremberg Trials (199 defendants tried by the IMT)( Nuremberg Trials | Holocaust Encyclopedia (ushmm.org), and Tokyo War Crimes Trials of 1945-1948 ( 28 defendants tried by the IMTFE) (War Crimes on Trial: The Nuremberg and Tokyo Trials | The National WWII Museum | New Orleans (nationalww2museum.org)
And yet, what appears to be an emerging politics of accountability underpinned by respect for International Human Rights norms is arguably driving the increasing number of Criminal prosecutions of those charged with the international Crimes against Humanity, Genocide and War Crimes.
The trial and conviction of Ratko Mladic for Crimes of Genocide and Crimes against Humanity , is just one of those Criminal Prosecutions.
Ratko Mladic’s role in the Srebrenica Genocide
Known as the ‘Butcher of Bosnia‘, Mladic, a Serbian general was convicted by the International Criminal Tribunal for the former Yugoslavia (ICTY) in 2017 for the Crime of Genocide and sentenced to life in prison for having ordered the executions of some 8000 Muslim men and boys in Srebrenica in 1995 (NYT June 8, 2021).
In what is considered the worst atrocity in Europe following the Holocaust, an estimated ‘100,000 people were killed, 2.2 million displaced and more than 50,000 women were raped’ in the Balkans. (NYT June 8, 2021).
The prosecution at Mladic’s trial had alleged a number of offences including A Srebrenica JCE ( Joint Criminal Enterprise), ‘the objective of which was the elimination of Bosnian Muslims in Srebrenica through the crimes charged in the indictment, including Genocide, Persecutions, Extermination, Murder, the inhumane act of Forcible Transfer, and Deportation. ( Trial Judgement Summary for Ratko Mladić (icty.org)
In a much anticipated judgment, the UN constituted International Criminal Tribunal for the former Yugoslavia articulated its grounds for convicting Mladic for the most heinous crimes known to mankind in its 2017 judgment: It held:
”With respect to the Srebrenica component of the case, Mladić has been found responsible for having significantly contributed to a JCE (Joint Criminal Enterprise) to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys and by forcibly removing women, young children, and some elderly men from at least 11 July to 11 October 1995.”Mladic Judgment Part IV (icty.org)
The ICTY Appeals chamber had previously argued in the Tadic case (1999) that Art. 7(1) of the ICTY statute–
”does not exclude those modes of participating in the commission crimes which occur where several persons having a common purpose embark on a criminal activity that is then carried out either jointly or by some members of this plurality of persons.” ( Cryer, Robinson and Vasiliev 2020, p.344).
Such a common purpose to perpetrate the crime of genocide was undoubtedly evinced by Mladic when he intentionally encouraged and assisted the Army of the Republika Srpska ( the Bosnian Serb Army) to eliminate the 8000 Boniak Muslim men and boys.
Significantly, the ICTY judges also enumerated their grounds for finding a Genocidal intent evinced by Mladic to eliminate such a particular ethno-religious group, the Bosnian Muslims in Srebrenica, stating:
”With regard to Mladić’s intent to commit genocide, the Trial Chamber considered in particular, his command and control over VRS and MUP units operating in and around Srebrenica from at least 11 July to 11 October 1995, his orders to separate the Bosnian-Muslim men from the women, children and elderly in Potočari from 12
July 1995, —
as well as his statements and speeches between 11 July and August 1995, in which he articulated that it was time to take revenge, and threatened that the Bosnian Muslims of Srebrenica could either ‘live or vanish’, ‘survive or disappear’, that only the people who could secure the surrender of weapons would save the Bosnian Muslims ‘from ‘destruction’.” Mladic Judgment Part IV (icty.org)
Tragically, it was on July 6 , 1995 that Mladic ‘promised his men a feast‘, claiming that ‘there will blood up to your knees” (Adam Jones 2017, p.441);
the town of Srebrenica located in Eastern Bosnia and Herzegovina had until then been under a 3 year siege since April1992, although declared by the UN to be a UN protected safe haven.
In what became a haunting memory that lingers till today, the UN Dutch peacekeepers watched powerlessly as Serb forces ‘overcame light Bosnian-Muslim resistance and rounded up most of the population’ before going on to separate the elderly men and adolescent males from the children and women who were whisked away in buses. ( Adam Jones 2017, p.442).
With the surrender of the Dutch forces and the fleeing of the Bosniak force came the mechanized, depraved killing of men and young boys; Paul Mojzes writes:
“what followed was cold blooded -slaughter of individuals. Mladic at first acted reassuringly and even in a friendly manner, promising to evacuate all except the Bosniak war criminals; women, children and elderly men beyond the age of fighting ability were separated from the able- bodied men”;
”the massacre of 8,000 men took several days , the Serb army being careful to destroy the evidence by burying the bodies in mass graves.’‘ ( Mojzes 2015, p.181)
A survivor’s story
One of the survivors of the Serbian genocide in Srebrenica, Nezad Avdic, a 17 year old Bosnian Muslim recalls being ‘lined up in front of a mass grave’ with his hands tied behind his back after being tortured and forced to take off his clothes. (Nedžad Avdić – Srebrenica, Bosnia & Herzegovina | Remembering Srebrenica).
” We stood in front of the Chetniks with our backs turned to them. They ordered us to lie down, and as a I threw myself on the ground, I heard gunfire.”
”I was hit in my right arm and three bullets went through my right torso ….I remember being frightened, thinking I would soon be dead or another bullet would hit. I thought it would soon be all over.” ( Adam Jones, p. 442)
Bloodied by the bullets fired into his body, Avdic ‘maintained his deathlike pose’ while lying among the dying men until his attackers left sometime at midnight ( Adam Jones, p.442) ;
Miraculously, after days of ‘wandering through the woods and sleeping in graveyards’, Avdic managed to reach the safety of a Bosnian controlled territory. (Nedžad Avdić – Srebrenica, Bosnia & Herzegovina | Remembering Srebrenica_
The emergence of a Justice Cascade
Like the Nazi war criminals, Hans Frank and Adolph Eichmann, who were tried for their involvement in the Holocaust in Nuremberg and Jerusalem , Mladic denied responsibility for the massacres in Srebrenica, arguing unconvincingly that he was ‘just fulfilling his military duties’. (NYT June 8, 2021).
The impunity with which these military generals and Heads of State such as Slobodan Milosevic (former president of the Federal Republic of Yugoslavia) , Radovan Karadzic (former president of Republika of Srpska) and Ratko Mladic perpetrated the ethnic cleansing, genocidal killings and rapes of thousands of civilians during the Bosnian war in the early 1990s have perhaps emboldened ultranationalists and far right politicians in promoting ethno-centric policies of hate and persecution of minorities.
Yet, it is undeniable that the convictions of war criminals such as Mladic and Karadzic evince the emergence of a ‘justice cascade‘ , one which Kathryn Sikkink describes as —
‘a new global trend of holding political leaders criminally accountable for past human rights violations through domestic and international prosecutions’ (The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations’ 2013).
Deflecting the blame for Genocidal killings : The Politics of Impunity
Conflicting narratives about the underlying reasons for the Srebenica genocide continue to be debated among scholars;
Some argue that the atrocities committed by the Serbs were not unprovoked, but largely driven by the desire to end the raids carried out by the Muslims into Serbian territory ‘to terrorize the local Serb population and acquire booty.’ (Mojzes 2015, p.180)
Similar arguments deflecting responsibility for the massacres in Burma were raised by Aung San Suu Kyi at the ICJ when she denied that the Burmese army had committed a genocide of the Rohingya people, but had merely responded to the ARSA fighters in the Rakhine State;
Interestingly, Suu Kyi’s denial was in part based on the grounds that the ICTY had not used the term ‘genocide’ to describe the ethnic cleansing of Kosovo in 1999; She argued:
‘Genocide is the crime that the International Criminal Tribunal for Rwanda applied in response to the mass-killing of perhaps 70 percent of the Tutsis in Rwanda. It is the crime that was not applied by the Tribunal for the former Yugoslavia to the displacement of approximately one million residents of Kosovo in 1999. Neither was it applied by that Tribunal nor by this Court when deciding upon the exodus of the Serb population from Croatia in 1995……” ( ALJAZEERA , 12 December 2019).
Such brazen attempts to deflect blame, avoid accountability and act with impunity characterizes the excuses given by State actors who seek to shift the responsibility for their crimes of ethnic cleansing and genocide from the aggressor to their victims.
From blaming hundreds of thousands of stateless, ethnic minorities for the ills plaguing a majority population in a State, to placing the blame squarely on a small number of armed resistance groups seeking liberation from settler colonial rulers, politicians continue to use victims of war crimes, ethnic cleansing and genocide as scapegoats for justifying their crimes.
The politics of impunity, however, ends when criminal accountability begins….
R. Cryer, D. Robinson and, S Vasiliev, An Introduction to International Criminal law and Procedure, 2020, Cambridge.
A. Jones, Genocide: A Comprehensive Introduction, 2017, Routledge, Taylor and Francis.