The Trial and Conviction of Ratko Mladic

Last month witnessed the final outcome of a six-year trial under international humanitarian law that examined charges brought against Yugoslav People’s Army General Ratko Mladic (known as the “Butcher of Bosnia”), including eleven counts of offenses fitting the definition of crimes against humanity—genocide, ethnic cleansing, war crimes—and described by the head of the tribunal that convicted him as “among the most heinous known to humankind.” The conviction handed down in the case (Prosecutor v. Mladic) on November 22, found the former general and ex-chief of staff of the Republika Srpska Army guilty of ten of those charges for which he was sentenced to life in prison. The most major crimes by far were the now infamous summary execution under his orders of between 7,000 and 8,000 men and boys at Srebrenica, and his Army’s siege of Sarajevo in which 10,000 people perished.

The importance of this and other major trials involving the Yugoslav Wars and carried out within the context of the international enforcement of humanitarian law cannot be overstated, particularly considering that the crimes committed took place within the context of war in Europe. In recent years, international justice in general—and the International Criminal Court (ICC) in particular—has come under fire for focusing on the developing world (i.e., Africa) while allowing Europe and the West to sort themselves out with regard to humanitarian law. But the major media coverage that Mladic’s trial and sentencing have received has been as much because it was the last case before the International Criminal Tribunal for the former Yugoslavia (ICTY) as because of the spectacularly heinous nature of the crimes committed. It is understood that any and all residual oversight and appeals of cases brought before the ICTY will be handled by the Mechanism for International Criminal Tribunals (MICT).
It is, perhaps, worth noting that international humanitarian law is, to a certain extent, undermined by the only very partial authority that major nations in the UN (the victors of World War II plus Germany) are willing to lend it. For instance, instead of all crimes against humanity coming under the single jurisdiction of the International Criminal Court (ICC), as would seem logical, authority and final oversight are broken up among a series of ad hoc tribunals operating under their own Security Council Resolutions. The court that tried Mladic, then, is not the ICC under the authority of the Rome Statute, signed and ratified by all but a handful of countries worldwide, but the ICTY, specially convened under UN Security Council Resolution 827, passed in 1993. Nor have such courts established prior to the Rome Statute (adopted in 1998 and in force since 2002) come under its general jurisdiction, in what should be a sort of global supreme court for humanitarian crimes.
Clearly, these special courts are not numerous. Indeed, the most specific ones have only been set up in cases where the abuses of humanitarian law have been so gross and impossible to ignore that the Security Council has had little choice but to seek justice, so as to maintain the reputation of the United Nations as the world’s number one peace-keeping organization. The first of these and the precedent for much of international humanitarian law were the Nuremberg Trials established to investigate and punish war crimes committed by Nazi Germany during World War II. The ICTY, the International Criminal Tribunal for Rwanda, the International Court of Justice (World Court) and the ICC could all be considered outgrowths of the Nuremberg Trials and the legal precedents that they set for humanitarian law.

That said, however, the ICTY has done its job well. While Mladic’s case has become, perhaps, the most emblematic of the Yugoslav War trials and sentences, during its prolonged existence, the ICTY has handled a total of 111 cases and indicted 161 persons, ranging from mere soldiers to top general officers and high-ranking political figures for their alleged parts in war crimes. Over a score of those people were acquitted, with three of those acquittals eventually being overturned and retrials scheduled. A total of 90 were convicted and sentenced and either served their sentences (a total of 56) or died while in custody. Sixteen are still serving their sentences and a total of 13 detained and brought before the tribunal in The Hague were later transferred to courts in Bosnia and Herzegovina, Croatia or Serbia.
Although international justice, in the figure of the ICTY, has received high praise from some quarters for its meticulous and unrelenting investigation into crimes committed during the Yugoslav Wars of the 1990s, as related to the cases brought before it, it has also been the target of considerable criticism. It is important to note that much of that criticism stems from the fact that, for survivors of these crimes against humanity, it would be difficult to imagine any sentence that could possibly be considered proper retribution for the horror and massive human losses that they suffered. Some observers have, in fact, pointed to the exemplary sentences handed down in the Nuremberg Trials following World War II, when a dozen prominent Nazi war criminals were sentenced to hang for their crimes against humanity. Meanwhile, the maximum sentence in the ICTY trials was “life”, as in the emblematic case of Mladic. That said, however, there has been a great deal of positive feedback to be garnered from the ICTY’s contribution to international justice.

For one thing, the tribunal was the embodiment of the purpose of international criminal law: to act when national justice fails to. Following the Yugoslav Wars, prosecutors of the former Yugoslavia who should have been investigating the war crimes committed during that period were clearly reluctant to open that can of worms and reluctance swiftly turned to impunity. The ICTY trials, then, ended up spearheading a shift from impunity to accountability in the aftermath of the Yugoslav Wars, and to the detention and trial of some of the main perpetrators of war crimes committed during those related conflicts.
Secondly, the meticulous nature of the investigations carried out and the exhaustive testimonies heard, tended to separate fact from the stilted perceptions of the different sides involved in the conflicts. For instance, still today, many Bosnian Serbs see Mladic as a national hero and defender of their homeland and consider his trial and sentencing to have been a sham based on “the lies” of his victims—just as, despite the overwhelming body of evidence to the contrary, Holocaust deniers still today claim that the historic genocide carried out by the Nazis before and during World War II is a mega-falsehood invented by the Jews. The careful establishment of clear-cut evidence in the ICTY trials has documented the truth regarding what really happened in the former Yugoslavia and has committed that truth to history.
A third contribution is of a more technical legal nature. Legal experts have pointed out that the ICTY trials have achieved accomplishments within the framework of international law. As the trials surrounding war crimes in the former Yugoslavia unfolded, concepts and precedents of international criminal law came up that had not been ruled on in a court of law since the Nuremberg Trials. Some of these concepts, then, ended up being reviewed and expanded upon as a result of ICTY court action.
Fourth, by taking action where local prosecutors hadn’t, the international tribunal ended up imposing international legal standards on national courts in the former Yugoslav states that did indeed later initiate actions to prosecute war crimes, thus providing a global benchmark for these and all future war crimes trials.

But in the end, perhaps the most important job that the ICTY did by ending impunity was to provide both a voice and a forum for justice to the thousands of victims of war crimes committed during the Yugoslav Wars of the 1990s. The best measure of this is the enormous number of witnesses permitted to tell their stories to the Tribunal during the course of the trials of those who would later be convicted of war crimes and crimes against humanity.
The telling and recording of their stories before this highly specific court has committed them to memory and made them an indelible part of the history of international humanitarian law.