Remembering Srebrenica: After All These Years, Why Are We Still Besieged by the Search for Truth and Justice?

By RUTI TEITEL

Monday, Jul. 11, 2005

Today, it is ten years to the day after the gruesome atrocities committed at Srebrenica--the murders of more than 7000 Muslim men and boys in what has become a symbol of the Balkans persecution.

Srebrenica, horrifying in itself, is also a broader symbol of contemporary inhumanity. Though half a century has passed since the Second World War, it represents the tragic and all too recent return of genocide to the heart of Europe.

In the region, it is as if it were yesterday. This is still controverted history. Rather than wreaths, crosses have been laid at the site of the massacre --and bombs detonated there. Resistance to recognizing any legitimate Muslim claim in this area of Bosnia plainly continues.

While post-communist Europe confronted questions of transitional justice a decade or so ago, in the Balkans, societies continue to be caught in a time warp of justice delayed - and thus, so far, denied. In this column, I will detail the situation, and the reasons why it has not yet been remedied.

The Main Srebrenica Culprits Still Remain at Large

Still at large are the main culprits in the Srebrenica massacre: political leader Radovan Karadzic and General Ratko Mladic, the men who ordered, implemented, and oversaw the massacre. Apparently, sympathetic elements the population are protecting Karadzic and Mladic - giving them aid, comfort, and shelter, and aiding their flight from justice, despite their atrocities. By now, it is thought, Karadzic -- the preeminent architect of Serbia's ethnic cleansing -- has likely escaped the region.

The drums are clearly beating this week. This Thursday, NATO resorted to the questionable tactic of indefinitely holding Karadzic's son, Aleksandar, picked up in his home near Sarajevo, until he reveals the whereabouts of his father. The detention is a sign of the extraordinary international pressure currently being brought to bear on this manhunt.

The chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), Carla Del Ponte, continues to press the Serbian government to cooperate by assisting in turning over General Mladic. But despite his campaign promises, so far, President Boris Tadic has failed to do so.

Perhaps Tadic is terrified that he will share the fate of the first post-Milosevic Prime Minister, Zoran Djindjic -- who cooperated with the Tribunal, and paid for it with his life. Milosevic himself, readers may recall, was spirited out of his home and the country in the dead of night, under extreme US pressure, again underscoring the level of societal resistance to transitional justice.

There continues to be a persistent drumbeat for the possible government turnover of Mladic. But time is clearly running out. After more than a decade, the ICTY is entering its end game, facing diminished resources and waning political will within the international community. It must wrap up new indictments this year, and disband by 2008.

If Karadzic and Mladic do escape justice, it will be an international disgrace - and a lingering symbol of the failure of international criminal enforcement in the region.

Nine High-Ranking Officers' Trial Preparations Are Only Now Underway

It is only now, a decade later, that trial preparations are underway at the war crimes Tribunal in The Hague for nine of the highest-ranking officers of the Bosnian Serb forces accused of playing central roles in the Srebrenica killings. These officers are facing charges of war crimes and crimes against humanity, and complicity to commit genocide. Yet they have only now been turned over to The Hague.

The delay reflects the ICTY's fundamental weakness: Unlike the Nuremberg tribunal, it was convened by the international community during, not after, a war. Without full control of either the evidence or the accused, from the start, the ICTY lacked from the outset some of the authority of "victors' justice" -- relying instead on the international community for its legitimacy.

The Trial of Slobodan Milosevic: Procedural Issues Have Slowed Proceedings

Meanwhile, we are now into the fourth year of the trial in The Hague of the political leader at the time of the massacres, Slobodan Milosevic. Milosevic is charged with war crimes, crimes against humanity, and genocide, not just for events in Kosovo, but going back to the beginnings of the conflict in Bosnia and Croatia.

One reason it has taken so long to establish Milosevic's criminal liability is that he has taken advantage of the ICTY's procedures to delay the trial, while challenging its jurisdiction and legitimacy. This has played well for him at home, where, for some, indicted war criminals are still touted as war heroes. Serbia's last presidential election was something of a referendum on Milosevic - and its relationship with the West and the international community - and it's clear some voters continue to side with Milosevic despite his crimes.

The longer the trial continues, the more Milosevic is able to represent himself less as perpetrator than victim of the international system, the very same sort of ploy he was able to successful use at home to justify the launching of his ethnic cleansing policy.

Ultimately, the Milosevic case raises tensions about the extent to which a country's political leader can be held to account, under the law, for a policy of persecution.

Historical Facts Are Still Controverted, and Mass Denial Reigns

Had trials been able to be conducted expeditiously, with all the defendants attending, they might have had the positive effect of establishing publicly and definitively at least some of the facts of the massacre. As it is, however,

in Serbia there is not even minimal agreement on the facts of the conflict, or the historical realities of the persecution. There is still no political consensus even on recognition of a national legacy.

For example, a recent proposal in Serbia's Parliament to give recognition to the day and condemn the Srebrenica massacre failed--lacking the necessary votes. And a May 17 forum on "Truth about Srebrenica" convened at the Belgrade Law Faculty fell apart when several speakers -- including a retired army general, and several journalists -- represented the atrocities that took place at Srebrenica as 'fabrications," intended to bring on "foreign intervention in the region."

The panel degraded into loud protests, slogan chanting, catcalls and angry shouting. Even worse, insults and threats of violence were directed toward the country's leading human rights activist, Natasa Kandic, Director of the Humanitarian Law Center, who was attending. Ostensibly for her own protection, Kandic was ushered out. It seems there is not enough security in the country even to protect freedom of expression as to this still extraordinarily divisive issue.

What is more shocking, and saddening, is that the Belgrade Law School panel was no anomaly; the views expressed there represent public opinion among many Serbians. Almost a decade after the Srebrenica massacre, and the start of the ICTY's work, debate continues to rage over responsibility for war crimes, with little or no agreement on even the simple facts of the conflicts in Bosnia, Croatia, and Kosovo under Slobodan Milosevic in the 1990's.

In 2001, then-President (now Prime Minister) Vojislav Kostunica tried to set up a truth commission. But it was doomed from the outset by allegations of bias, and was disbanded within a year, without having made any historical findings.

A recent poll commissioned by the Belgrade Center for Human Rights and conducted in April 2005 by Strategic Marketing, a leading Serbian polling agency, confirmed the public's failure to agree on the most basic facts of Srebrenica. Only half of those polled believed that a "huge number of Muslims/Bosniakshad been killed in Srebrenica." Put another way, half the population denied the genocide.

Fortunately, Serbian television recently made the courageous choice to air a video depicting in graphic detail the Serb executions of Muslim men and boys at Srebrenica. For some, denial continues: In a recent poll commissioned by the country's Ministry of Human Rights, more than one third of those polled denounced the video as a "hoax " Still, the good news is that the broadcast provoked the first national debate about the degree of Serbian responsibility for the Srebrenica massacres, and has added to societal support for extraditions of those responsible to the Hague.

The Unrealistic Expectation that A Court Could Bring Peace to the Region

The failures of the ICTY are even more disappointing if judged against its initial ambitious aims. The tribunal was intended, under the UN charter's "chapter 7" peacemaking powers, not only to establish criminal liability, but also to bring peace. The UN's hope was that bringing international justice to the region would establish the truth, stave off cycles of ethnic vengeance, and even bring about peace and ethnic reconciliation.

Accordingly, the ICTY's first chief prosecutor, Richard Goldstone, argued for condemnation of ethnic persecution as a way to enable all sides to transcend identity politics and move towards a more liberal political order. The core idea behind the tribunal was that individual accountability would somehow break the chain of ethnic identity and communal vengeance. But individual accountability turned out to be hard to establish quickly enough (or, in some cases, at all), and the chain was never broken.

It was a tall order for a court - and the first time ever that one was convened under the UN Security Council's peacemaking powers. And it turned out the UN's expectations as to what the court could accomplish, and how quickly it might do so, were deeply unrealistic. The UN

claimed the Tribunal would deter further violence, and set up so-called "safe areas," of which Srebrenica was one.

But it failed to send adequate numbers of peacekeepers, or adequate fire-power, to the so-called safe areas. That turned out to be a tragic mistake. The result was massacre at Srbrenica, as well as other atrocities in the so-called "ethnic cleansing" in the region.

Appallingly, the Serbian army launched an offensive on a UN safe enclave and a humanitarian catastrophe ensued.

In the region, today's anniversary continues to be a sober reminder of the ongoing closing of ethnic ranks - even as reconciliation was supposed to be on the horizon. The UN needs to focus more attention on how this happened, and how similar debacles can be avoided in the future.

Similar peace-making hopes are being placed today in the permanent International Criminal Court (ICC). The ICC is being entrusted with the investigation and even management of situations of conflict, such as in Congo. It has also been given the task of jumpstarting transition and reconciliation in the region. In attempting this daunting task, the ICC should be mindful of the ICTY's failure to achieve similar goals.

At A Minimum, "Preservative Justice" Is a Must for the ICTY

What will happen when the ICTY closes its doors?

Given the ongoing ethnic divisions, it's very hard to imagine that the ICTY's unfinished cases, investigations, and indictments could be turned over to national courts, which would then justly resolve them. While Chief Prosecutor Del Ponte has called for "partnerships for justice," so far the picture is far from promising: The very few domestic trials in the region continue to reflect the fractious politics and pervasive ethnic bias that surround them.

In the light of this depressing reality, the ICTY should, at a minimum, attempt "preservative justice" - for neutral proceedings for this region may need to wait decades more.

Today, many European countries continue to prosecute defendants for World War Two-related crimes. Cambodia is only now embarking upon a prosecutions policy for some of those responsible for Pol Pot's persecutory policy. And only now, at least three decades after the event occurred, Argentina is prosecuting its military junta's crimes against humanity. Likewise, it may well be several political generations before the Balkans crimes are worked through.

That's why it's imperative for the ICTY to, at a minimum, assure the creation and dissemination of a record that, at the very least, fixes clear parameters on the possibilities of historical denial - a record that can be used to counteract denial and fabrication as to what actually occurred. The ICTY, in other words, ought to write its own accurate history of the Srebrenica massacre, insofar as it can do so, before that history is permanently, and inaccurately rewritten by others.

In the mean time, there is an important role for civil society here: It can promote education to foster ethnic and religious tolerance, and it can promote the development of the rule of law - most crucially, human rights law.

Indigenous human rights organizations in the region such as the Humanitarian Law Center are doing just that. They are marking the Srebrenica anniversary by launching a regional school for students and NGO activists from diverse backgrounds from all over the region, a school for "dealing with the past."

Transitional justice can take diverse forms and starts with the willingness to recognize the past, and to begin to accurately and factually map its contours.


Prof Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at NY Law School, and a member of the Council on Foreign Relations. She is the author of Transitional Justice (Oxford Univ. Press 2000). She has also been a war crimes commentator for Court TV, covering the first ICTY trial. She can be reached at rteitel@nyls.edu

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