Legacies and Prospects of Joint Criminal Enterprises in Europe
April 14, 2016
On March 24, 2016, the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted former president of Republika Srpska (RS) and supreme commander of the RS armed forces, Radovan Karadzic of genocide, crimes against humanity, and war crimes. He was sentenced to 40 years in prison. Karadzic was convicted of persecution, extermination, deportation, forcible transfer, and murder in municipalities throughout Bosnia. He was convicted of prosecuting a campaign of terror using the Army of Republika Srpska against the civilian population of Sarajevo in order to pressure the Bosnian Muslim leadership and the international community to accept his political goals in Bosnia. The chamber recognized that Karadzic was at the apex of the political, governmental, and military structures of the RS and that he used his power and influence to further the objective of the overarching Joint Criminal Enterprises (JCEs) in Bosnia.1
Karadzic was the chief architect of the ideology and policies which led to the creation of a largely ethnically homogeneous Bosnian Serb State. With Karadzic's conviction, ICTY has established beyond reasonable doubt the true scope of the reprehensible crimes used by the Bosnian Serb civilian and military in their efforts to secure an ethnically cleansed state.
While judicial culpability for these criminal acts remains individual, attribution to these crimes is clearly systemic and collective. This massive failure of the Westphalian system in the heart of Europe, the current threat posed by a large numbers of failing, failed, and forming states in the Middle East, and rampant violations of human rights and increased brutality of modern warfare, should all give us pause and force us to reflect on the importance of this verdict and choices that are before us. Surprisingly, this landmark verdict received very little consequential coverage in mainstream media given the implications it has for the future of Bosnia within Europe.
Now that the facts of Bosnian war are clear, allowing the status quo to stand with RS still in place will only encourage other JCEs around the world to pursue their monstrous goals, knowing that outcomes rewarding genocide are possible and in fact condoned by the world powers. Bear in mind that in March 2016, the U.S. government declared that ISIS is guilty of committing genocide against Christians and other minorities in its territory. Consequently, one must ask: Could ISIS' political and military campaign of terror be as successful and lasting as the one of the Republic of Srpska?
If we miss the opportunity for corrective action in Bosnia the post-World War II European new-found character will be tarnished and discredited. It will provide enemies of civilization with justification for their crimes and it will further bolster their already unshakable conviction. Just days before the Karadzic verdict, the current RS political leadership opened a student dormitory near Sarajevo named after Karadzic in a show of defiance and nationalistic pride. This is undeniable evidence that Bosnian society is in stage eight of modern genocide theory: Denial.2 In Bosnia we are currently witnessing the setting of the final stage before repeated offense, and with it a repeated threat to the European security project. We are allowing a new generation of Europeans to mature on an unethical and dehumanizing academic diet and culture of governance soaked in intolerance. With it we are leaving Europe with an infected wound threatening its somewhat weakened immune system.
To counter this long known but newly acknowledged threat of subtle moral decay in international affairs, a whole new culture is emerging. Recently, UN Secretary General Ban Ki Moon presented a Plan of Action to Prevent Violent Extremism before the General Assembly.3 The plan calls on member states to deploy systematic preventive strategies: "Both the General Assembly and the Security Council have acknowledged that violent extremism has reached a level of threat and sophistication that requires concerted action beyond law enforcement, military, or security measures to address development, good governance, human rights, and humanitarian concerns. Strengthening the rule of law, repealing discriminatory legislation, and implementing policies and laws that combat discrimination, marginalization and exclusion in law and in practice must be an essential component of any response to the threat posed by violent extremism."4 The plan further states: "Governments that exhibit repressive and heavy-handed security responses in violation of human rights... tend to generate more violent extremists. International partners that are complicit in such actions by states further corrupt public faith in the legitimacy of the wider international system."
Why should we care about events that transpired over two decades ago? To put it simply, punishing individuals while preserving the culture and society that allowed them to commit crimes in the first place seems to be close to pointless.
On a positive side ICTY has established beyond reasonable doubt the true scope of the reprehensible methods used by Serb forces in Bosnia in their efforts to secure an ethnically cleansed state. The didactic quality of the ICTY will certainly help society to face the demons of the past. In this respect, the ICTY process against Karadzic and his four JCEs is a massive historical achievement.5
In addition, for the first time since the end of the Bosnian war and the conclusion of the Dayton Peace Accords (DPA) the ICTY verdict allows us to revisit the legitimacy of Bosnia's post-war political organization. War casualties and victims of genocide in Bosnia are a permanent loss and a permanent stain on humanity, but there cannot be a reward for genocide.
Our collective reaction to this verdict in Bosnia is an opportunity to redefine what is ethically acceptable for Europe in the long run. Inaction will result in the defeat of pluralism and prolonged indifference towards a thriving culture of hatred and denial will mark the beginning of the decay of these values as a long-standing aspiration of Europe.
Now is not the time to leave things to chance. Silence to such acts and indifference in the face of verdicts delivered by ICTY is an abdication of morality and ultimate defeat of human spirit and human rights. It is a defeat of reason, scientific progress, and academic advancement.
The outcomes of the ICTY trials are generally positive but not as a measure of justice that Karadzic and other convicted war criminals received. To some extent the individual punishments are less important for the overall society then they are for the direct victims and survivors. Their true value is an irrefutable testimony produced by a credible international tribunal spelling out historical facts for generations to come. It is a moral defeat of the Bosnian Serbs' political project in Bosnia, as it qualifies works of the entire civilian and military state complex of Republic of Srpska as a collection of Joint Criminal Enterprises. However, when we compare the work of ICTY to the Nuremberg Tribunal, the material difference is that the Nuremberg Tribunal dealt with the institutional nature of Nazi transgressions and the need to eliminate the same.6
Today, the Serb Democratic Party that carried out the war continues to participate in government, there are no laws against denial of genocide, the structure and the laws of the state still clearly reward for ethnic cleansing and genocide. But most alarmingly we, the international community, remain a willing party to a deal negotiated with terrorists.
Bosnia and Europe are still living under the terms of a "peace accord" that was clearly negotiated with a terrorist organization as argued in Sarajevo JCE, a terrorist organization employing the full capacities of the state. At some point the peace accord has to evolve into a "state" for the sake of European security. What will be the basis for that state? JCEs or European and American values?
In getting all parties to sign on to the Dayton Peace Accords and ending the genocide, the late Ambassador Richard Holbrooke delivered a historic achievement that should be celebrated. However, 20 years later the ICTY prosecution delegitimizes the DPA as the basis for a lasting solution. The verdict has concluded the phase of DPA's usefulness. The UN's plan of Action to Prevent Violent Extremism would support this position. To borrow from then Senator Biden, "to allow the people who instituted a policy of genocide in Europe in the 1990's to get exactly what they intended is an absolute capitulation. It is a disaster." Today we realize, looking at the DPA, that the current state of affairs in Bosnia is a realization of Karadzic's wartime plans. As long as it stands, it is a capitulation of ethics.7
The question before us is whether or not we are facing a moral imperative to act beyond the achievements of the DPA and how can we affect the change? Moral convictions are often not enough to move us into action, particularly on matters of foreign policy. But when moral correctness coincides with securing stability, maintaining critical geopolitical influence and democratic order, while at the same time creating a currency of credibility that can be invested in rebuilding Bosnia's reputation with an increasingly skeptical world, the moral imperative to act should be much easier to pursue.
The ethics of the DPA are often discussed but so far have not been conclusive. The reason is simple. The search for truth and justice in a context paralyzed by the political realities of wartime adversarial motivations is bound to produce no long-term agreement. This is particularly true in the context where war crimes were committed. As suggested by Michael Walzer "... moral discourse is always suspect, and the war is only an extreme case of anarchy of moral meanings... Judgments of necessity are in this sense always retrospective in its character—the work of historians, not political actors."8
The retrospective approach taken by historians is useful in defining the context, but by no means sufficient in justifying ex post morality of ensuing conditions of violent conflict. That said, morality should be understood as having only an ex ante quality as its true nature should be universal and unchanging even if that is to be in its minimalist form that accounts for vast cultural differences. Consequently, with all of Bosnia's complexity in mind, a starting point of discussion should be agreement on what is morally acceptable outside of the context of any specific war but rather within the context of humanity. Humanity is the only true context we all share. In this context genocide is wrong and should be avoided, not rewarded.
While the Srebrenica Genocide in particular, and ethnic cleansing in Bosnia in general did not receive such consideration during and immediately after the war due to the wartime ambiguity, the responsibility to prevent, punish, and suppress genocide, and the recent UN plan of Action to Prevent Violent Extremism gives us clear guidance. Whenever we are presented with an opportunity to create a better narrative for historians of the future, acting correctively with the benefit of hindsight is a bare minimum we must pursue.
In Bosnia, America and its allies were faced with a straightforward choice between justice and legitimacy on one hand and effectiveness on the other. In retrospect, effectiveness has prevailed over justice in the course of ending the war. Stopping the loss of human life and horrors of genocide was second to providing concessions to Serb leadership recognizing the efficacy of ethnic cleansing and genocide. Granting the exclusive ethnic territory and governance over half of the country, an ethnically exclusive police force, ethnically exclusive voting system, and ethnically exclusive name of the entity that is Republic of Srpska at the time seemed necessary. Today, RS continues to maintain ethnically exclusive jurisdiction over municipalities where Croat and Bosnian Muslim majority populations were exterminated and forcibly deported, including Srebrenica that went from being a UN safe area to becoming a site of the first genocide in Europe after the Holocaust. The very elements that at the time made the DPA possible as a means to end the war are elements that today make it unjust, illegitimate, and unstable.
All considered, it is tolerable to view the DPA as ethical at the time of its making but it would be unethical not to see it evolve. As Michael Walzer writes, "It is important to stress that morality of war is not fixed by the actual activities of soldiers but by the opinions of mankind."9
It is reasonable to claim that ethics in international affairs have matured to the point that we can freely and effectively identify both ethical failures and structural impediments of the DPA and collectively work to correct them; especially on the European continent. America and its European allies are faced with a choice of whether to induce the change and complete the statehood building process or regress to a passive transformation that is sure to take decades without certainty of its outcome; thereby probably assuring Karadzic's legacy to be preserved and becoming a permanent fixture of European society.
We should be courageous enough to find a firm ground for this effort in the wide-based support for the principles of the Genocide Convention, the UN plan of Action to Prevent Violent Extremism, and the necessity to complete the accession of the former Yugoslav states to the EU, still a soft underbelly of European security. In this regard it is essential that we acknowledge and accept that the future course of action can be charted without the burden of compromises made during the wartime era of imperfect knowledge and a constrained playing field.
1 http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement_summary.pdf. For discussion on evolution of JCE as a theory of criminal liability of individuals for collective action see pages 455–462 Alexandra Link, "Trying Terrorism: Joint Criminal Enterprise, Material Support, and the Paradox of International Criminal Law" Michigan Journal of International Law, Volume 34 | Issue 2. http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1006&context=mjil
4 Plan of Action to Prevent Violent Extremism, Report of the Secretary-General, 24 December 2015
5 The trial lasted a total of 498 days during which 11,500 exhibits were admitted. The Trial Chamber took the testimony of a total of 586 witnesses of which 337 witnesses were called by the Prosecution, 248 by the Defense, and 1 by the Trial Chamber.
6 For discussion on prosecution of Criminal Organizations during Nuremberg see page 33, 52, 58 Draft: Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law ∗ Allison Marston Danner† Jenny S. Martinez‡ Cal. L. Rev. January 2005 https://www.law.berkeley.edu/files/fall04_Martinez.pdf page 52
7 CONFLICT IN THE BALKANS; Nationalist Says Serbs' Rejection Of Pact Means the End of Bosnia, The New York Times. By JOHN F. BURNS, May 17, 1993
8 Walzer, Just and Unjust Wars, page 11
9 Walzer, Just and Unjust Wars, page 15