Ratko Mladic and the end of being above the law

Last week’s arrest of the former Bosnian Serb commander, Ratko Mladic, for the murder of 7,500 Muslims in Srebrenica in 1995, helped Serbia’s campaign for membership in the European Union.

Last week’s arrest of the former Bosnian Serb commander, Ratko Mladic, for the murder of 7,500 Muslims in Srebrenica in 1995, helped Serbia’s campaign for membership in the European Union.

But more importantly, it is a big step in the international effort to enforce the law against those who used to be free to murder and torture with impunity.

The old rule was: kill your spouse and you will be punished for murder. Kill thousands of innocent people in the service of the state, and you will get a medal.

That ancient tradition was challenged after the Second World War, when leaders of the defeated Axis powers were tried for war crimes and for the newly defined crimes of aggression and genocide. But it was merely an innovation with no follow-up — until the genocides in former Yugoslavia and Rwanda in the early 1990s forced the international community to act.

In 1993, the United Nations Security Council set up the International Criminal Tribunal for former Yugoslavia. The following year, a similar tribunal was created to investigate the genocide in Rwanda. But these were ad hoc courts to address specific crimes.

What was really needed was a permanent international court to enforce the law against politicians and officials in countries where the government could not or would not bring them to justice. The Rome Statute creating the International Criminal Court (ICC) was signed by over 150 countries in 1998, and the treaty came into effect in 2002.

Since its creation, the ICC has opened three investigations at the request of a local government (Uganda, the Central African Republic, and Congo-Kinshasa), two at the request of the UN Security Council (Libya and Sudan), and one at the initiative of chief prosecutor Luis Moreno Ocampo (Kenya). Most of the killers will escape, of course, but two dozen people have already gone to trial.

The ICC has no jurisdiction over crimes committed before it created, so Ratko Mladic will go before the International Criminal Tribunal for former Yugoslavia, but it’s really all part of the same institution.

The major complaint against this new system is that it moves too slowly — but that could even be an advantage.

It took 16 years to track down and arrest Mladic, and his trial will probably take several more. But this suggests a certain inexorability: the court will never stop looking for you and eventually they will probably get you. That has a powerful deterrent effect.

It is widely assumed by Kenyans, for example, that the inter-tribal carnage there in 2008 after the ruling party stole the last election was launched and orchestrated by political and military figures. Supporters of the leading opposition party, cheated of its victory, began killing people of the Kikuyu tribe (most of whom backed the government), as soon as the results were announced.

The ruling party responded by using not only its own tribal supporters but also the army and police to kill opposition supporters, especially from the Kalenjin tribe. Over a thousand were killed and more than half a million became “Internally Displaced Persons.”

Another election is due next year and Kenyans fear that it might happen again. However, three powerful men from each side, including the deputy prime minister, the secretary to the cabinet, and the former commissioner of police, have been summoned before the ICC to answer charges of “crimes against humanity.”

There will inevitably be a long delay before these men are tried but that is actually a good thing, said Ken Wafula, a human rights campaigner in Eldoret, the city at the centre of the slaughter. “Those who are supposed to incite will see what ICC has done and they will not be ready to (stir up violence) for fear of maybe a warrant coming out.”

Many suspect that the Sudanese regime’s acceptance of the overwhelming “yes” vote in the recent independence referendum in southern Sudan was similarly driven by fear among officials in Khartoum that using force would expose them to the same kind of ICC arrest warrant that has already been issued for President Omar al-Bashir over the Darfur genocide.

So long as they stayed in power, of course, they would be safe. But what if the wave of revolutions sweeping the Arab world comes to Sudan? They would become hunted men, and probably be handed over to the ICC.

So they seem to have opted for the peaceful path instead.

Even after 16 years, the ICC got Ratko Mladic. It got most of the surviving organizers of the genocide in Rwanda.

Future mass murderers may proceed anyway — consider Libya, Syria and Yemen at the moment — but the ICC is nevertheless a genuine deterrent and sometimes it saves lives.

Gwynne Dyer is a freelance Canadian journalist living in London.

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