The US and international criminal justice 25 years after Srebrenica: Everything’s changed or plus ça change?

Tom Buitelaar

Today marks the 25th anniversary of the fall of Srebrenica, where Bosnian Serb militias, led by Ratko Mladic, massacred eight thousand Muslim men after they threatened and cajoled Dutch blue helmets to evacuate this ‘safe area.’

The mass killing turned out to be the final straw for many Western countries, who intervened into the Bosnian civil war under US leadership with air strikes and coercive diplomacy, and eventually managed to force the conflict parties into the Dayton peace agreement.

Back then, almost everyone agreed that the perpetrators of the Srebrenica atrocity had to be prosecuted in a court of law. The vehicle for this would have to be the International Criminal Tribunal for the former Yugoslavia (ICTY), established by the UN Security Council in 1993. The US and its allies delivered essential support to the ICTY. As recounted by Julian Borger in The Butcher’s Trail, from 1997 onwards, special forces from NATO countries arrested more than twenty individuals under warrants by the ICTY. Moreover, the US and the EU used its financial influence to pressure the former Yugoslav states – especially Serbia – into surrendering ICTY fugitives.

Eventually, these efforts resulted in the arrest of Mladic, who had been indicted by the ICTY for his role in Srebrenica. Mladic was arrested by the Serbs in 2011, in a small village in Serbia. In 2017, the ICTY sentenced him to a life sentence, which he will serve in a prison cell in Scheveningen.

The US leadership in supporting the prosecution of war criminals in the former Yugoslavia appears to sharply contrast with more recent news surrounding the US and the ICC. Last month, President Donald Trump signed an executive order imposing sanctions against ICC officials involved in the investigation of alleged war crimes in Afghanistan.

So what has changed that the US has apparently made such a sharp volte-face in its attitude towards international criminal justice?

Recent media articles seem to explain these developments by pointing to Trump’s absurd ‘policy’ positions on international organizations and his foreign policy of ‘America first.’ Indeed, Trump does not appear to care whatsoever about the international world order that the US itself built after World War 2. In his by now famous speech at the UN in September last year, he left no doubt that he feels the future belongs to ‘sovereign and independent countries’ with only a very limited role for a ‘just world order.’ Last week, he once again showed his disdain by submitting a notice of US withdrawal from the WHO to the UN Secretary-General.

In fact, however, the US actions towards the ICC can be better explained as a Trumpian expression of a very American phenomenon, with a much longer history. Shortly after the establishment of the Court in 2002, then-President George W. Bush dispatched his UN Ambassador John Bolton to cajole countries into renouncing support for the Court. The US Congress, too, passed the American Service-Members Protection Act, which proscribed any material support by the executive to the Court. It even kept open the possibility that American forces would free American citizens from the Hague by force if necessary. Although Bush’s successor, President Barack Obama, gave all kinds of pragmatic support to the Court if it served US interests, he, too, did not make a priority of ensuring US ratification of the Court.

This can be explained by a deep skepsis in the US towards the Court, and any other international organization for that matter. Opponents are concerned that the Court may restrain America’s room for maneuver abroad, that other countries will use the Court to translate their anti-Americanism into judicial warfare, or that highly placed American officials may end up in the docket for potential war crimes committed in Iraq and Afghanistan (and possibly elsewhere).

But the skepsis goes even deeper than that. There is a large group of Americans who oppose any kind of limitation of US sovereignty whatsoever. The idea that ‘the best country in the world’ would have to accept the authority of international organizations is anathema to these people. The ghost of exceptionalism, whereby the US doesn’t have to oblige by the same rules as the rest of the world, is still strong – and can be found on each side of the political aisle. Justifications range from a claim that the US, as a super power, has a ‘special responsibility’ in the world and therefore deserves more rights to a conviction the US does is morally just regardless of the content of its actions.

These positions translate into an attitude whereby the US is certainly willing to contribute to the fight against impunity, but only if it is in its interests and only if international tribunals stay away from US citizens. For a long time, the international community tacitly accepted this hypocrisy. What is different now, though, is that the sanctions imposed by Trump will undoubtedly have consequences for the credibility of US efforts to fight impunity elsewhere.

As such, they seem to be a symptom of the end of the American leadership that was so successful in the former Yugoslavia, and which contributed to Mladic spending the rest of his life in jail for the atrocities he committed 25 years ago in Srebrenica.