WORLD MAY 30, 2011
What is it about international justice that impels so many intelligent and politically sophisticated people to spout so much utopian nonsense? Anyone doubting this needs to look at the statements that have been pouring like rain out of the United Nations, and out of the major human rights organizations like Amnesty International and Human Rights Watch, about the arrest of Ratko Mladic, the commander of Serb rebel forces during the Bosnian War and architect of the Srebrenica massacre, in which 8,000 Bosniak men and boys were murdered in cold blood. It is not that there is any morally licit reason to view Mladic’s capture with anything other than satisfaction and, for those whose loved ones were slaughtered, the chance “to face him in court after all these years,” as Alex Hagedorn, the lawyer representing the group The Mothers of Srebrenica, put it. But while these victims’ reaction is entirely warranted, it is difficult to take seriously the claims that have been made for the extra-Balkan, indeed, the global significance of the arrest, as so many of the great and the good of our world have done.
Such hosannas really do give idealism a bad name. For UN Secretary General Ban Ki Moon, Mladic’s arrest was nothing less than a “historic day for international justice … [and] marks an important step in our collective fight against impunity.” For Navi Pillay, the UN’s High Commissioner for Human Rights, it sent a strong message to political and military leaders “contemplating crimes such as [Mladic’s], or those who fail to prevent or punish them, that times and regimes change, and there will be no impunity.” Whether Pillay, in alluding to (but not naming) the UN’s invocation of the new doctrine of the Responsibility to Protect as part of its justification for sanctioning military action against the Qaddafi regime in Libya, really meant to raise the specter not just of regimes changing, but of regime change, is impossible to say. But to claim that, in effect, with Mladic’s arrest, the world stood on the threshold of the end of impunity for anyone with command responsibility for genocide, crimes against humanity, or war crimes, was breathtaking enough.
To put the question starkly, why should Mladic’s arrest, seventeen years after Srebrenica, by Serb authorities, among whom there were certainly many as aware of where he was as there were senior Pakistani officials aware of where Osama bin Laden had installed himself, be cause for such jubilation outside the Balkans? It is not as if anyone was ignorant of the fact that Mladic’s arrest had long been an absolute sine qua non for any serious consideration to be given in Brussels and in Strasbourg to Serbia’s ambition to become a candidate country for admission to the European Union. By agreeing to send Mladic to the international tribunal in The Hague, that path was now open. As the Italian foreign minister, Franco Fratini, put it, Serbia’s action had brought itself “closer to Europe and the EU,” and that this process now needed “to be accelerated further, without reservations.” Michael Sindelegger, Austria’s foreign minister, was blunter still, declaring that Serbia has “removed a significant obstacle on its path to EU membership.” And Baroness Catherine Ashton, the EU’s foreign policy chief, promised that Brussels would now approach Serbia’s future in the EU “with renewed energy.”
In other words, the Serbian government’s decision to pick up Mladic and hand him over to The Hague was anything but millennial. There is absolutely nothing wrong with this. But there is something deeply disingenuous and, to the extent that it is likely to raise false hopes among people throughout the world who might take such declarations at face value, morally problematic about pretending the world will henceforth be a better place. As a friend of mine in Sarajevo put it upon hearing of Mladic’s capture, “The old people are happy, the young people say Serbs are good traders.” That seems a fairly accurate summary of what has happened. Why then did Richard Dicker, a senior official at Human Rights Watch, feel justified in insisting that Mladic’s arrest was “a clear message to accused like [Sudan’s] Omar al-Bashir and potential accused like Muammar Gaddafi that justice never forgets,” when in fact there is ample evidence that while justice may not have amnesia, its memory, to put it charitably, is as highly selective as it has always been?
To the extent that international tribunals have changed the world, it is in opening the possibility of bringing to book only those accused war criminals from countries that are the supplicants in the international system rather than that system’s masters. Human Rights Watch may have chosen to claim that Mladic’s arrest showed that “no one is beyond the reach of the law,” but obviously they know better. For military and political figures from rich and powerful nations—the United States and the other NATO countries, as well as Russia, China, India, Indonesia, etc.—impunity is as alive and well as ever. When you see indictments handed down against, say, the Russian generals who destroyed Grozny or the Indonesian politicians and military figures who slaughtered at will in Timor, then talk to me about the law’s majesty’s and reach. Until then—and the Second Coming is more likely to occur first—what we are witnessing is an extremely modest step toward some judicial accountability for some war criminals from some countries that are not only weak themselves, but also without the benefit of powerful nations to run interference for them. In other words, there is less here than meets the eye, not more.
One explanation for the outsized jubilation with which many human rights activists have greeted the Mladic arrest is that their contentment has a political subtext—one that is closely connected to the growing perception in Africa that international justice has focused almost exclusively on the Subcontinent. At the present time, all the accused currently before the International Criminal Court are Africans (Mladic is to go before a separate tribunal established to deal specifically with the former Yugoslavia). Unsurprisingly, complaints from African leaders about this uneven (not to say more) application of international justice have been growing steadily. In 2009, the African Union passed a resolution calling on its member states (including those that were party to the treaty that established the International Criminal Court) not to cooperate with the Court’s chief prosecutor, Luis Moreno Ocampo, in his efforts to apprehend Sudan’s dictator, Omar al-Bashir. Under strong pressure from South Africa, the AU ultimately rescinded that resolution. But it subsequently declared that, in receiving President Bashir in defiance of their obligations as state parties to the ICC, Chad and Kenya had acted appropriately, and were “implementing various AU decisions on the warrant of arrest issued by the ICC,” and “acting in the pursuit of peace and stability in their respective regions.”
The Mladic arrest would seem to provide at least some refutation of these widely held African perceptions. As Elise Keppler, a senior counsel with the international justice program at Human Rights Watch, put it, the pending transfer of Mladic to The Hague is “a reminder that international justice extends far beyond the African continent.” Not that Keppler appeared to be particularly sympathetic to these African concerns. “Complaints by African leaders about the uneven application of international justice would carry a lot more weight,” she wrote (though one would like to ask her, with whom? Human Rights Watch, perhaps?), “if they focused more on ensuring prosecutions for atrocities wherever they are committed, such as by promoting wider ratification of the ICC’s Rome Treaty, than impeding the court’s functioning with calls for non-cooperation” in the capturing of President al-Bashir.
Go beyond Keppler’s scolding language, so reminiscent of the 19th century Christian missionaries who accompanied the soldiers and administrators of the French and British empires into Africa and who also spoke and wrote as if they had a monopoly on virtue, and you begin to get a sense of how controversial the ICC in particular, and international justice in general, remains, and how comparatively unsuccessful Moreno Ocampo, now approaching the end of his term, has been in—as human rights campaigners say—ending impunity. Given this atmosphere, it would seem that the capture of Mladic could not have come at a better time. But while a sense of satisfaction over his arrest is more than justified, suggesting that it represents some great leap forward for justice is not—a case not so much of ‘let the buyer beware’ as of ‘let the rejoicer beware.’ Despite what the Prophet Isiah said, we shall not, in fact, be redeemed with judgment.
David Rieff is a contributing editor for The New Republic.