Thursday, July 14, 2005

Srebrenica: Justice, Peace and Reconciliation

The papers this week have been filled with discussions of the ten-year anniversary of the Serb massacre at Srebrenica. Two articles well worth reading are Christopher Hitchen's post at Slate, and this one in the Economist (sub. req'd). I also read with great interest the comments to Julian's post on the broader question of deterrence and international criminal law. While some (like Professor Rosa Brooks) may look back on the past ten years as marking progress in bringing criminals to account for atrocities and crimes against humanity, an equal case can be made that the decade has represented abject failure -- of both law and policy.

Srebrenica was a nadir for lawyers, for the United Nations, the EU and the entire international community precisely because the massacre took place under the harsh light of publicity (remember when the war in Bosnia led the news almost every night?), within a UN-mandated and NATO-protected "safehaven," during a UN-mandated peacekeeping operation. It is also important to recall that it took place when the ICTY had already been created and was finally gaining some momentum in its early investigations and indictments. (Admittedly, more robust intelligence cooperation from the US and UK came later.) There was, in other words, a court with jurisdiction over the territory, actors and the crimes that would take place in Srbrenica. But it didn't make a difference. Despite an engaged international community, a court with jurisdiction to prosecute crimes, troops on the ground with a mandate to protect the very people at risk, it happened. In Europe.

And, as Hitchens points out, the shame that we all share does not end there. The two men responsible -- Radovan Kradic and Ratko Mladic -- are still at large. In Europe. Hiding, as it were, in plain sight. How can anyone claim victory for the idea (or ideal) of prosecution in this case? If the European supporters of the ICC really believe in prosecution, there should be a daily drumbeat of pressure on Serbia and Bosnia and on the EU, whose troops took over the Bosnia peacekeeping mission from NATO last year.

Part of the explanation for why these atrocities continue to happen lies outside politics and law. International human rights and criminal lawyers have begun to look beyond strict international legal doctrine to take into account the unique psychological and sociological conditions in which mass atrocities take place. In the cases of Rwanda and Bosnia, studies have demonstrated that conditions for mass murder can be created. And if conditions can be created, they can be monitored by the international community for the purpose of preventing future acts.

As we have discussed on several occasions on this blog, I share Julian's general skepticism that international criminal law is a deterrent of the types of crimes it is designed to prosecute. To be fair, as some of the comments to his post note, the deterrence argument has largely been abandoned in debates over the ICC. Retributive justice, truth telling, and political reconciliation are additional values that can be promoted through prosecution. But sometimes the latter two values are better promoted through non-prosecutorial mechanisms (truth commissions, peace agreements, institutional power-sharing, post-conflict education). Retribution is often all that is left.

Srebrenica offers some important lessons for international dispute resolution as well. It was, arguably, the nadir of the Srebrenica massacre (taken together with the 1994 Rwandan genocide) that finally jolted the US and, most important, the Europeans, to real military intervention to end the war in Bosnia. It certainly altered the terms of the broader debate over military interventionism in cases of mass atrocity -- bringing together the neocon interventionists with the liberal humanitarian interventionists. The memory of Srebrenica loomed large when Kosovo started to unravel in 1998-99; those arguing against intervention at that stage had little moral ground to stand on. But memory is short within the international community. International human rights and humanitarian law place individual life at the center; international politics do not. Conflict prevention, like liberty, requires eternal vigilance. As I have argued in the cases of Darfur and Uganda, prosecution should not be used as a way to excuse effective outside engagement in conflict resolution.

But neither intervention nor prosecution address the most vexing problem: Long-term peace and reconciliation. Some of the comments have noted that the ICC is intended to assist and complement national legal processes. Accepting that the ICC (and the ICTY and ICTR) can have an impact by developing jurisprudence from which national courts can borrow, how else does an international prosecution contribute to peace and justice? Japan and Germany are still grappling with their own histories in very real ways that affect their societies, culture and domestic and international politics. Where will Bosnia, Rwanda and Kosovo be in 50 years?

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