By Yves Poirmeur
Translation: Davina Durgana
Passage au crible n°46
Indicted since 1995 for war crimes, crimes against humanity and genocide by the ICTY (International Criminal Tribunal for the Former Yugoslavia), General Ratko Mladic was arrested on May 26th, 2011 by Serbian authorities. Colonel of the Yugoslavian Army in Knin, Croatia (1991), then General Commandant of the Serbian Amry from 1992-1995, he was one of the principal leaders of the military creation, on the ruins of Yugloslavia, of a Grand Serbia which would have reunited the Serbs of Serbia, Croatia, Bosnia-Herzegovnia, and of Montenegro. With the arrest on July 21st, 2011 of Goran Hadzic, pursued for his implication in the murders of hundreds of Croates during the Croatian War (1991-1995), Serbia has now remanded to the ICTY, 44 indicted persons whom they have requested. The ICTY has thus the power of disappearing throughout the years and has come to have completely accomplished its mission since the 161 people whom they have indicted have been deferred to them.
To re-designate borders, in a multiethnic country, Ratko Mladic did not recoil before any crime. He drove a policy of ethnic cleansing – by murders, deportation, massacres of civilian non-Serbian populations, bombardments of villages – in order to realign Serbia and Western Bosnia with Croatian and Bosnian Krajinians. Additionally, he played a central role in the Bosnian War which had over 100,000 deaths and was marked by the tragic siege of Sarajevo (1992-1993) in which the terrible massacre killed nearly 8,000 Bosnian Muslims in Srebrenica (July 1995). After the arrests of Slobodan Milosevic (2001) who was in power in Serbia from 1989-2000, and Radovan Karadic (2008), the leader of the Bosnian Serbs from 1992-1995, R. Mladic had remained the last main leader responsible for the ethnic cleansing still at large. It was not for 16 years that he was caught by international justice and delivered to the ICTY.
Instituted on May 25th, 1993 by Resolution 827 of the Security Council of the United Nations, the ICTY represented an ad hoc criminal jurisdiction charged with judging the leaders of grave violations of international humanitarian law committed in the Former Yugoslavia since 1991. This was the first resurgence of international justice which had single precedents in ad hoc military tribunals in Nuremberg (1945) and Tokyo (1946), its creation – such as the ICTR in 1994 to judge the genocide in Rwanda – was made possible by the end of the East-West conflict. In this new international conjuncture, the Security Council created a liberal interpretation of the United Nations Charter (Chapter 7). In fact, it decided to put in place ad hoc criminal jurisdictions which could participate in the maintenance of peace and international security. Despite the functional obstacles and overall policies, these two ad hoc instances have brought a fundamental contribution to the fight against impunity. In creating the demonstration of these international criminal jurisdictions rendering efficiently justice, they have also validated the project of establishing a new implement which would be at once permanent and capable to recognize the most serious international crimes, and who has committed them. The creation of the International Criminal Court in 1998 and its vigorous entry in 2002 has been consequently situated in its wake. However if this latest implement translates well into taking root for criminal justice for international institutions and the rationalization of its functioning, it leaves all at once the persistence of structural difficulties revealed before the ICT in their fight against impunity. Without the disposal of a judicial police, the international criminal jurisdictions must obtain the collaboration of States in order to make their investigations, to retrieve evidence and to obtain the arrests of the indicted. In order to do this, they must develop a true diplomatic judiciary before the group of political actors implicated in the conflict. In other words, the chances of success depend on a complex ensemble of relationships in forces, such as was demonstrated by the course of General Mladic.
1. A Diplomatic Judiciary in Motion. The international criminal jurisdictions consecrate a substantial part of their work in tying relationships with national, local and international authorities in order for them to accept to put police in their service so they will have them at their disposal. The advancement of procedures remains thus tributary to the interests of diverse actors, of which the Investigator and the President must understand and analyze well in view of direct cooperation.
2. The Refusal of Impunity. Serbia must accept a European condition of eventual adhesion to EU : Serbia must refuse all impunity. In doing so, the European Union imposed soft power, which became efficient in motivating Serbian leaders as they cannot envision a future for their country outside of Europe.
Created while the war was still raging, the ICTY was constantly confronted by contradictions of judicial and political logic, the arrest of the indicted and the completion of investigations dependant on governments. This is only because the mandate of NATO forces (1997), under the pressure of the President of the ICTY, which had arrested indicted persons and that the leaders of the war began to be brought before the tribunal. The international forces were preferred to the weak local police force that these arrests facilitated the application of the Dayton Accords (1995). NATO had thus operated under its mandate (accomplished by the end of 2004), 30 arrests. But, while he was installed in Serbia, the shelter of international forces profited Mladic, as well as Karadzic, as inertia of large powers tied, without doubt, to the circumstances of the incident in Srebrenica. In fact, as, the American, English, French governments and NATO had begun secretly negotiating their participation in peace accords, Mladic had been left to prepare the siege around the village.
For a long time, Mladic benefited from the multiple complicities of the army, the state apparatus, and the many nationalists. Then, the change of the relationship of political forces in Serbia, which manifested in 2008 by the election to the Presidency of the Democracy, Boris Tlalic, and the intransigence of the European Union on the question of impunity, had permitted his capture. The fundamental choice of Serbia to integrate into the European Union was finally what sealed his fate.
The fight against impunity remains a permanent fight in which the ICTY has accorded an eminent contribution. Far from preventing the establishment of peace – such as some had feared – it has demonstrated that it can, to the contrary, facilitate in the establishment of peace, in permitting international forces to placing indicted criminals outside the state of harm so that they may be arrested. It has also conferred a true credibility on the international criminal justice in demonstrating that it is capable of judging the extreme serious crimes which, without it, would without doubt go unpunished. Additionally to the issue of due process, it has conferred severe penalties. Thus, in accomplishing the arrest of indicted persons who have claimed a permanent stake on the international scene and in intervening, against all beliefs, and remanding them to the ICTY, it has inscribed the repression of international crimes in history, fighting as well against the culture of impunity.
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Schoenfeld, Heather, Levi Ron, Hagan John, “Crises extrêmes et institutionnalisation du droit pénal international”, Critique internationale, (36), 2007, p. 36-54.