In the wake of the confirmation of Ratko Mladic’s final judgment, the rulings of the Hague war crimes courts still leave us with much to discover about truth, guilt, the meaning of genocide and the elusive concept of reconciliation.
The delivery of the Ratko Mladic appeal verdict went as expected, with no surprises other than a flurry of dissents from the presiding judge. With the legal outcome essentially unchanged from the trial verdict, there is not a lot that is new to say about it.
Having nothing new to say about legal findings may not be such a bad place to be. The International Criminal Tribunal for the Former Yugoslavia, ICTY and its successor, the Residual Mechanism, have left a mixed record. Their melange of good and bad decisions shows a great deal about the current capacity of law, both its ability to open new ground and its reluctance to step beyond some constraining boundaries.
But above all it has shown that the wounds and tensions of a part of the world recovering from large-scale violence cannot be addressed through processes that rely only on law.
So if this is the moment when we can turn away from criminals and the damage they have left behind them, and toward the societies picking up the pieces, what are the lessons that can be learned from 28 years of keeping law on the front burner? Let me suggest a few, in the hope that other people can suggest some more.
Lesson 1: The search for truth is more than confirmation of facts
A lot of people turned to courts in the hope that they would tell the story of the violence that people suffered. And in many respects the courts did tell that story. Thanks to the Tribunal’s researchers, we know more about the scope, scale, and details of atrocities that were committed in this conflict than in nearly any other conflict in history. And because the research was carried out in the context of criminal prosecution, we know a great deal about who was directly and indirectly responsible. The potential contributions of the archives of the prosecutors’ office have really only begun to be explored.
There are also some things that we do not know, and that the Tribunal archive will not tell us. We do not understand well enough the broad set of conditions that made violence possible. We do not fully understand what violence meant for the communities that suffered it. And we have only questions about what the experience means.
It will take more than facts collected to answer specific questions about the guilt or innocence of indictees to fill these demands for understanding. The most obvious need is for dialogue, for the sharing, hearing, and recognition of experience, and for the exchange of experiences across the ethnic and national boundaries that the violence created.
On a more specific level, two points that the judicial record left unclear need to be addressed. First, did the violence take place in a ‘civil war’ or as part of a cross-border conflict? Judicial findings have been vague: Croatia was indirectly implicated in the Tihomir Blaskic, Dario Kordic and Herzeg-Bosnia cases, but without any charges against the people named.
Judges have stopped short of saying that Serbia arming, financing, training, and staffing the forces that committed crimes constituted involvement in those crimes. The legal reasons for producing a historically nonsensical story like that are probably clear – a coherent story would expand the scope of prosecution beyond the capacity of the court. But there is no reason for historians, or citizens, to be satisfied with non-answers.
The second historical question that the court left unresolved is related. Did the incidents for which people were convicted comprise part of an overall plan? This is the source of the widespread frustration with the judges’ repeated finding that genocide was committed in Srebrenica but nowhere else.
It makes no sense to maintain that genocide can take place in the absence of a genocidal project, to create homogeneous territories by forcibly changing the population. It is entirely possible that the answer to this question involves interpretations that may not constitute proof beyond a reasonable doubt under the standards of criminal law, but demonstrate an intention and a pattern that are persuasive in their own terms.
Lesson 2: ‘Individualisation of guilt’ is fine for law but not for understanding
One of the principles that was brought to prosecutions was ‘individualisation’ of guilt. The principle meant that people directly responsible for committing or ordering crimes would be prosecuted and the guilt would rest with them. This was a reasonable answer to the prevalent rhetoric of the period of conflict, in which ‘the Serbs’ did one terrible thing, ‘the Croats’ another, and so on.
Of course ‘the’ members of abstractly conceived groups did not do anything. The atrocities were committed in their name by people who had seized power over diverse communities. Identifying the people and forces who had actually carried out the crimes was a good way of relieving whole societies of a burden they did not deserve.
But there is also a fundamental structural illogic to the neat legal logic. An individual can plan, order, participate in, or approve a large-scale crime. But an individual cannot commit a large-scale crime. The force, organisation, and equipment necessary to carry out, for example, the systematic execution of thousands of people, or the forced expulsion of thousands of people, are only available to institutions and states. And the will to commit a crime of this scale can only be the result of declared or unstated policy.
Legal institutions are poorly equipped to deal with this set of facts. States are able to sue one another before the International Court of Justice. But there are not many viable legal vehicles that allow victims to pursue the agents of political, corporate, or collective responsibility. From the point of view of law, this may be a good thing. But from the point of view of understanding, it makes no sense for the universe of responsibility to be restricted to individuals.
Many of the propositions that make good sense in relation to the application of criminal penalties – for example, that a person is ‘innocent until proven guilty’, or that ‘the benefit of the doubt should always accrue to the accused’ – do not translate well to the world of actually lived ethics in the material world.
This means that even if dangerously arbitrary propositions like ‘collective guilt’ have to be rejected, there is probably nonetheless reason to look at shared accountability in the action or inaction of institutions that contributed to the commission of crimes or to the creation of an atmosphere in which crimes were made to appear to be normal or justifiable.
This category of responsibility unavoidably includes political, media, and educational institutions.
Lesson 3: The genocide fetish causes more problems than it solves
Most of the findings of both the trial and the appeals chamber in the Mladic case were consistent with what most observers expected. Once other indictees had been found guilty for genocide in Srebrenica, there was not much chance that the highest-ranking military commander would not be found guilty. Similarly, once previous panels had decided not to qualify other large scale crimes as genocide, the probability that the last panel to consider the question would decide differently was fairly low. To the degree that these findings were controversial, the dispute had to do with whether the crimes were defined as genocide or another crime.
Let’s first get one question out of the way. The crimes that the judges did not define as genocide, they defined as crimes against humanity. As the label ‘crimes against humanity’ suggests, these are by no means minor offences. Before the Genocide Convention came into force in 1951, there was no higher crime under international law.
Regardless, genocide is ranked as a graver crime, so prosecutors are inclined to pursue it and states are inclined, depending on whether their political leadership declares an affinity with the perpetrators or the victims, to pursue it or avoid it (or in some cases that are familiar to everybody in the region, to do both).
This is where the jobs of the lawyers and the judges become complicated. In order to persuade a court to find that genocide was committed, the following poorly defined elements, delineated in Article 2 of the Genocide Convention, have to be proven: a) that the acts were committed with “an intent to destroy, in whole or in part” [both “intent” and “destroy” are undefined, and there is endless debate as to how big a part is a “part”], and b) that the object is a “group” that is “national, ethnical, racial or religious” (that is, a symbolic rather than a political or military target).
Most of these contentions range from difficult to impossible to prove beyond a reasonable doubt, and this is why courts have made so few findings that genocide has occurred. To the degree that there is a legal debate about the rigidity of the criteria, it takes place mostly in dissents (yesterday’s dissent by judges N’gum and Panton has now joined this literature).
It is possible that in the future, legal standards might change so that courts are more receptive to genocide charges, but for the foreseeable future they are not. This means that it is not reasonable to expect a lot of convictions for genocide.
Is this a problem? It is only a problem to the degree that a finding of genocide is regarded as a necessity to show the seriousness of a crime, or as an instrument for building political capital. Otherwise a finding of crimes against humanity cannot conceivably be thought of as a loss or (forgive the sport analogy) a consolation prize.
We can go further than this. One of the requirements for a finding of genocide is showing that the victims became victims as a member of a group. On the face of it, this may not seem so controversial – the perpetrators probably did, in most cases (often without great precision or accuracy), target victims as members of a group. The contention becomes more problematic when we think about the whole lives of victims. What caused them to be perceived as members of a targeted group? Is it because of something the victim believed or felt? This may be the case but we do not always have a way of knowing. Or is it because the perpetrator defined them in this way?
If this is the case, then the rationale of the perpetrator also becomes the dominant criterion of the judge. The logic of the Genocide Convention requires people analysing the crimes to adopt the same logic that is used by perpetrators in reducing the humanity of victims to the groups to which they are assigned.
This is why there is a growing body of opinion suggesting that a fixation on finding that crimes constituted genocide is at best a distraction, and at worst an enhancement of the harm that was done by the crime.
Lesson 4: Who do you want to know more about?
We know a lot of things that we never wanted to know about Ratko Mladic. We know that he requested and received strawberries while he was in pre-extradition detention. We know that he altered his customary finger decoration for the reading of his verdict, and that his choice of symbols was outrageously inappropriate. Overall, we know things that we might be curious to know about a pop singer or supermodel, but would never ask about a person whose principal distinction in life was to order mass executions.
This is, in short, the problem with highly public trials. The criminal becomes, for a period, a celebrity, a star of their own TV show and the focus of all attention. Not just the crimes, but the criminal’s health condition, personal idiosyncracies and other eccentricities take centre stage. Sometimes they do it to the exclusion of the crimes.
When attention is redirected in this way, it comes at a cost; it is directed away from something else. In this case it is directed away from the victims, and from the families of the victims, and from the large number of people whose lives have been transformed by the traumatic experience of the crime.
And that is in fact where attention has been directed during the period of over two decades when the main question put before the public was whether the things that had happened could be proved or not, and whether the people responsible would be sent to prison or not. A number of the people who were released from prison came home to public speeches, receptions, parades. Some published memoirs, some re-entered political life. Nearly all of them received some benefit.
It might be inevitable that a public trial for a major crime brings some publicity to the perpetrator. A gain for the perpetrator is a loss for the victims. We may want the story to turn to recognition of their experience, to the problems that they face, and to their needs. This does not seem to happen, if it happens at all, before the people who caused their problems leave the centre stage.
Lesson 5: Engage the whole society
For the most part, the trials have been an elite operation. The UN and other international institutions engaged in communication with states, which were given conditions with which they were expected to comply. The political leaders of these states either succeeded or failed in complying with these conditions, for which they either received or failed to receive benefits from the UN and other international institutions.
The exercise resulted in trials in which the law professors in the prosecution and the law professors in the defence contested before the law professors on the bench, in a technical language that most members of the audience could not understand.
Left out of this whole process was the public.
Why was the public excluded? Probably the principal reason was fear: fear on the part of politicians that any departure from the wartime line would be unpopular, fear on the part of the legal professionals that their activity would be subordinated to politics, fear on the part of criminals that their guilt would be revealed, and fear on the part of beneficiaries of crime that they would lose their position.
Another reason may have been that politicians calculated that the risk of revealing what they know could be passed onto the courts, who would reveal it in their own time. But there is no reason to single out politicians. They are, after all, in all the states of the region, among the least trusted people in the least trusted institutions.
What is striking if you trace the discourse of the last several years is, with some distinguished exceptions, the absence from public dialogue of the societies’ most trusted institutions: religion, education, and culture. More often than not, people who looked to these institutions for meaning or understanding found either mimicry of the ideology of the conflict period, or they found silence.
In that context it is hard to look in wonder at the publics in different states receiving information and rejecting it, or dismissing the sources, or recontextualising the information out of existence. Most people were not given the opportunity to do anything else. Part of the blame for this lies on the timidity of the institutions from which answers may have been expected. But a big part of it lies on the decision to transfer the whole work of producing historical understanding and interpreting its meaning onto courts.
The vicious circle of silence and repetition is difficult to exit under any circumstances. It is more difficult to exit when the holders of political and institutional power depend on it being maintained. In that regard, it is hard to imagine the monopoly of discourse being broken without the emergence of a new generation of socially active people whose position does not depend on the power of their predecessors.
Lesson 6: Only say ‘reconciliation’ if you mean it
If you want to annoy a person in any of the Balkan states, just say the word ‘reconciliation’. You will get a litany of responses, ranging from observations that the concept is empty, to complaints that it imposes a standard against which the citizens of no other part of the world are measured, to objections that victims were never in a conflict with their perpetrators and cannot be expected to reconcile with them. The term is in fact overused and badly defined.
But if we do mean something by ‘reconciliation’, what useful thing could we mean? The Canadian Truth and Reconciliation Commission, appointed to examine the role of residential schools in the destruction of indigenous cultures, offered an answer to the question in 2015, in a document entitled ‘Principles of Truth and Reconciliation’. The document sets out ten principles of reconciliation, and it may be worth devoting attention to a few of them.
Principle 3, for example, proposes a definition: “Reconciliation is a process of healing of relationships that requires public truth sharing, apology, and commemoration that acknowledge and redress past harms.”
Principle 5 suggests that “Reconciliation must create a more equitable and inclusive society by closing the gaps in social, health, and economic outcomes that exist…”
And principle 9 points out that “Reconciliation requires political will, joint leadership, trust building, accountability, and transparency, as well as a substantial investment of resources.”
These principles might be thought of as ideal in character, and they might be dismissed as unattainable. These objections would not be groundless. Every ‘truth and reconciliation commission’, in states where they have been appointed, has come forward with recommendations. And none of them had the authority to see that their recommendations were implemented. In all cases, the recommendations that pointed to systematic inequality as a core cause of abuse and proposed means to reduce inequality were ignored.
All the same, there is something to learn from these principles. They converge around an understanding not only facts but mutual recognition and action intended to ensure redress form the core conditions for reconciliation. They recognise that reconciliation comes at a cost but promises the benefit of trust. And they acknowledge that reconciliation involves a political commitment to address inequalities that are at the root of most political violence.
At this point, it would be understandable if some readers were to point to the ugly displays of the past few days, deriving both from official and unofficial sites of power, and observe that we are not talking about a fantasy land of pure mutual recognition, or even about the relatively stable and prosperous environment of Canada, but about deeply divided semi-peripheral states where the memory of violence is very much alive.
It might be further objected that it is excessive to demand moral greatness from political societies that are compelled to live with an atmosphere of insecurity and marginality. These are all reasonable objections.
But all of these objections invoke the same fear: the fear that recognising the truth will carry some unbearable cost, in particular for the security or the reputation of states. In that case it may be worth looking at states that have offered dramatic acknowledgements of responsibility.
We have several instances from just the past few weeks. France made apology and promised reparation for its complicity in the Rwanda genocide of 1994. Canada’s repeated apologies and renewed commitments to victims of violent forced re-education in the 19th and 20th Centuries. Germany both apologised and committed reparations to victims of the 1904-1908 Herero and Nama genocide. The US president visited Tulsa to commemorate the 100th anniversary of the massacre there and to offer promises of change.
Neither these gestures nor similar ones by other states have been complete or ideal, and not all of them have been universally welcomed. But it would be fair to observe that on balance they improved the reputations of the states involved rather than damaging them, and even critics who dismissed them as inadequate regarded them as steps in the right direction. A short period of accepting responsibility improved the reputation of states more than a century of repressing it did.
It is possible that ‘reconciliation’ has only become an ugly word because it points to nothing real and has no content. This problem may derive from a period in which all attention was concentrated on the past, all activity was confined to institutions that had no contact with the public, and all of the obligation to ‘reconcile’ was placed on people who had no ability to do anything about it.
These were drawbacks of the period when all energy was concentrated in criminal law. With that period reaching its end, it is possible (but not likely) that space could be opened for broader engagement in societies sharing understanding, to balance elites promoting fear.