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. Continue reading

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OSCE Mission to Bosnia Launches Resources for War Crimes Reporting

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An image the OSCE Mission to Bosnia’s website.

The Organization for Security and Cooperation in Europe (OSCE), which has recently been thrust in the news in light of recent events in Ukraine, has had a productive spring.  The Organization, founded in 1975 out of a conference in Helsinki, is the world’s largest security-oriented intergovernmental organization, with approximately fifteen mission offices.  Almost twenty years after the close of the conflict in the Former Yugoslavia, the OSCE Mission to Bosnia and Herzegovina’s Rule of Law Unit has recently released a report detailing progress the country has made in prosecuting war crimes cases involving sexual violence. In addition, the Mission recently released a groundbreaking interactive war crimes map.

The report, titled “Combating Impunity for Conflict-Related Sexual Violence in Bosnia and Herzegovina: Progress and Challenges,” is  available in both Bosnian and English. It focuses on the prosecution of wartime crimes of sexual violence committed against an estimated 20,000 women, and countless men and boys during the 1992-1995 conflict in the former Yugoslav state.  The report examines the prosecution of wartime sexual violence during the period from 2005 to 2013 and provides a background on international jurisprudence on rape and sexual violence more generally.  It also describes the establishment of certain forms of sexual violence as war crimes, crimes against humanity, and genocide within the Bosnian national legal framework. Moreover, the report details the Bosnian special evidentiary rules governing sexual violence cases and examines the practice in both Bosnia’s high State Court, as well as the regional cantonal courts.  The report also includes several annexes that set forth the number of sexual violence cases charged, as well as a list of completed and ongoing cases involving wartime sexual violence before the Court of Bosnia and Herzegovina.

In addition to serving as a useful research tool, the report will help ensure that the lessons learned by Bosnia in prosecuting crimes of wartime sexual violence will be available to the world in our efforts to stamp out wartime sexual violence everywhere.

Spring also saw the OSCE Mission to Bosnia and Herzegovina releasing an innovative war crimes map, available here.  Also available in both Bosnian and English, the map is an interactive tool containing information on all war crimes cases adjudicated by Bosnian courts since 2003.  The map allows users to search by location of the court, or crime.  The OSCE explains that the tool is targeted at a “wide audience,” including the media, civil society, academia, and the general public.  Christopher Engels, Head of the Rule of Law Unit for the OSCE Mission to Bosnia, recently introduced the mapping project in an interview available here.

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A screenshot of the OSCE Mission to Bosnia’s interactive warcrimes mapping tool.

As tensions continue to rise in Eastern Europe, it is as important to look back as it is to look forward.  National prosecution of war crimes in Bosnia and Herzegovina will continue, but it is important to take a moment to both appreciate and understand the progress made in the prosecution of some of the worst wartimes crimes.

Sex in Peace Operations

sex in peace opsShould all sex between international personnel and local people in peace operations be prohibited? Why are peacekeepers rarely prosecuted for crimes such as rape? Should humanitarian workers be allowed to pay for sex? Should local laws or international standards determine the age of consent to sex between local people and international personnel in peace operations? My book, Sex in Peace Operations, examines the regulation of sex between international personnel and local people in United Nations peace operations through case studies of Bosnia, West Africa and the Democratic Republic of the Congo.

Over the past two decades there has been a series of scandals implicating UN peacekeepers, humanitarian workers and private military contractors in sexual exploitation and abuse of local people. Perhaps the best known of these are the cases of Cambodia and Somalia in the early 1990s, Liberia and Sierra Leone in 2002 and the Democratic Republic of the Congo (DRC) in 2004.  More recently the film The Whistleblower has publicised trafficking in women by private military contractors employed by DynCorp and seconded to the UN as international police monitors and trainers in post-war Bosnia.  Although less widely reported, there are also non-exploitative sexual relations between peacekeepers and local people.

The response to sex in peace operations has shifted over the last twenty years from an attitude that ‘boys will be boys’ to a ‘zero tolerance’ policy.  The zero tolerance policy, which appears to have been developed as a substitute for an effective legal framework, is itself highly problematic.  My book argues that the regulatory focus should be on preventing, and ending impunity for, sexual crimes committed by international personnel against local people, rather than trying to prevent nearly all sex between international personnel and local people, as the zero tolerance policy claims to do.  It suggests more responsive approaches to sex in peace operations that aim to promote the sexual autonomy of local people, particularly women and girls.