I admit to having some reservations about the trial of Ratko Mladic and others like it… and that’s a hard thing to say because from the evidence I am aware of there does seem to be a very strong case against him. War crimes and crimes against humanity are obviously a big deal and should be punished but the very nature of them as political, high-profile events makes the trials of accused perpetrators very tricky affairs. For a start, the accused can use them as a place to bandstand and promote more hate in a semi-legitamised context. Then there are, as always, the questions about the fairness of such trials in the first place. The delay in the Mladic case as the result of errors in the handling of prosecution evidence was unfortunate but at least shows the tribunal is not overtly biased towards the prosecution. However, has any defendant ever been found not guilty in a modern high-profile war crimes trial? Not as far as I’m aware, and that is slightly worrying for me (if anyone knows of an example, please let me know). I’m willing to bet that Mladic will be found guilty too, which does make you wonder about the extent to which war crimes trials are really show trials, enforcing the victor’s justice. Of course there is nothing new about this. After all, no Allied airmen or leaders were ever held accountable for the crime of carpet bombing Germany and Japan (not to mention twice nuking Japan) in WWII despite such actions clearly being in violation of the principle of proportionality as laid out in International Humanitarian Law.
The best way to dismiss these worries would be to bring some of the West’s alleged war criminals up for trial at the ICC (that’s the International Criminal Court, not the International Cricket Council) – but that particular body seems more concerned with Africans, and the US and others are not party to it anyway.
All of which raises an interesting question for me: is it better to have a system which selectively tries war crimes in a seemingly biased fashion, or to have no system at all? If the only war criminals who get caught and convicted are those from marginalised or weak states it clearly is not fair, but not convicting anyone at all is even less fair. So we end up with the current situation, as imperfect as it is. Mladic will be found guilty, his supporters will claim it was never a fair trial, and people in powerful states who are responsible for violations of the war of law will go unpunished. Such is the nature of the international political landscape – liberal institutions only operate in as far as it’s in powerful states interest for the to do so. At least some war crimes are punished, and that fact alone should be applauded. It’s just a shame that moving beyond this point seems so unlikely at the moment.