Cautionary tales for the Mueller Probe from the International Criminal Tribunal for the former Yugoslavia


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Photo by the National Archives and Records Administration

“I just can’t wait to hear the final report of the Mueller probe!”

Even those not normally interested in the intricate details of complex legal investigations have found themselves obsessed with the criminal investigation at the center of our nation’s political drama—the Special Counsel Investigation into Russian interference in the 2016 election, or the Mueller probe.

Both sides of the political aisle are awash with speculation about what the final report might reveal (and it’s probably as damning as whatever is in Donald Trump’s tax returns). Whatever you think it might disclose, we all seem convinced that the investigation will prove to the American public once and for all just what was going on during the 2016 election.

But international justice offers a cautionary tale about the ability of criminal justice mechanisms to draw a line in the sand about political events.

Very popular criminals 

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The International Criminal Tribunal for the Former Yugoslavia



In 1993, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to try those most responsible for the crimes committed during the Balkans wars of the 1990s. In December 2017, it sentenced former Bosnian Serb general Ratko Mladić, also known as “the Butcher of Bosnia,” to life imprisonment for genocide, war crimes and crimes against humanity. Justice, one might infer, had been served. Who could deny the atrocities now?

After the Mladić verdict, in Srebrenica—a town whose name became synonymous with the 1995 genocide—mayor : “Mladić will be remembered in history and this sentence only strengthens his myth among the Serb nation, which is grateful to him for saving it from persecution and extermination.” For a little less than half of the Bosnian population, Mladić is not a war criminal: he is a hero.

Denials about atrocities of the war are typical and commonplace in the Balkans, even of infamous events like Srebrenica. Despite 2.5 million pages of court transcripts, the ICTY’s findings are not always accepted as true among the people for whom it was established.

There are many theories about why Bosnians have not internalized the ICTY rulings. Some argue that the trials and the judgments were too lengthy, complicated and legalistic for people to understand—the court is located far away in The Hague and the proceedings are conducted in English and French. People in the former Yugoslav simply didn’t watch the trials or read the verdicts. Some point the finger at nationalist elites, politicians and journalists, who used confusion about the ICTY rulings for their own benefit. Still others point out that the defendants were allowed to hijack the trials and use them as political platforms, undermining the ICTY’s ability to communicate with the public.

But the truth was that being subjects of international indictments for war crimes did not really lessen the popularity of any of the Balkans leaders among their constituencies. Before his arrest, former Bosnian Serb President Radovan Karadžić would hold public rallies in Republika Srpska, his supporters chanting “Don’t arrest him!” or “We are all Radovan [Karadžić]!” while waving Karadžić posters or masks. Croat generals—alleged war criminals included—were incredibly popular among Bosnian Croats and in Croatia, hailed as the heroes of “the Homeland War.” Croatian Prime Minister Zoran Milanović even sent the Croatian state plane to The Hague to fly acquitted Croatian Generals Ante Gotovina and Mladen Markač back to Croatia to, as he put it, “get the boys back home.” A poll taken half way through the trial of former Serbian president Slobodan Milošević found that 39% of the Serbian population found his performance “superior,” less than 25% believed he was getting a fair trial, and only 33% thought he was “actually responsible for war crimes.” In fact, Milošević won a parliament seat in Serbia while on trial at The Hague.

In short, the ICTY did not succeed in convincing people that their leaders had committed crimes.

The fact of the matter, facts don’t matter

Why do so many people in the former Yugoslav countries reject the findings of the ICTY? In part, I think it has to do with what criminal justice processes do: they establish facts.

But facts alone do not really dispel or craft narratives.

People were generally not very interested in the type of questions the ICTY answered—what weapons were used, who saw what field report, whether the war was an international or non-international armed conflict. Instead, they were looking for an endorsement of a more expansive historical narrative. As Michael Ignatieff eloquently summed up: “Either the siege of Sarajevo was a deliberate attempt to terrorise and subvert a legitimately elected government of an internationally recognized state, or it was legitimate pre-emptive defense by the Serbs of their homeland from Muslim attack. It cannot be both.”

Political actors have simply used the facts established by the ICTY in order to back up their own narratives or interpretation of history.

For example, the acquittal of Serbian leader Vojislav Šešelj has been interpreted by some as a vindication of the Serbian nationalist version of history. They argue that the acquittal confirmed Šešelj’s “claim that Serbian policies were mere consequences of the Yugoslav breakup” rather than pre-mediated acts of ethnic cleansing. (In reality, the prosecution simply could not prove that Šešelj had command responsibility for fighters under the command of Serbian military and police forces.) But this legal finding was lost on many members of the Balkans public, and Šešelj has used the acquittal to rejuvenate his nationalist party in Serbia.

The lesson of the ICTY may be that no matter how rigorously you establish facts, they are inevitably interpreted through pre-existing narratives.

We see what we want to see

Political commentators often seem shocked when, watching the latest antics of the Trump administration, his approval rating among his base remains high. But this shouldn’t be a surprise. Trump supporters, and opponents, invariably interpret his actions to conform with their preconceived narratives. Facts do very little to disrupt those stories.

Having a rigorous and independent criminal justice system is vital for any functioning democracy—but it is important we do not give qualities it does not possess. Law enforcement investigates and prosecutes crime. They do not craft political narratives.

The findings of the Mueller probe, whatever they may be, will probably not be a unifying moment for the United States. Instead, it will most likely be interpreted by each side as vindication of their own story: that Trump is incompetent if not totally corrupt, or that the liberal elite are out to sabotage the President of the people.

We cannot expect our law enforcement system to fix our political divisions.

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