Security Council should target the Ratko Mladics of Myanmar

Ratko Mladic, the formerly all-powerful “Butcher of Bosnia,” will be spending his final days in jail. Convicted in The Hague of 10 of the 11 charges against him, including genocide, crimes against humanity and war crimes, Mladic saw the world collapse before him. His outburst at the court on hearing his verdict was a possible reflection of this disbelief.

Does the Mladic verdict sound the bugle of accountability for Myanmar? Is it a warning against impunity and high-handedness for those with a tenacity to go beyond the law under the reign of Aung San Suu Kyi?

The International Criminal Tribunal for the former Yugoslavia (ICTY) is a remarkable institution. It has singlehandedly enriched the jurisprudence of individual criminal accountability in a nuanced and systematic manner, leaving the international community wonderstruck at the length and breadth of its judicial wisdom and courage.

In holding a range of high and politically influential individuals responsible for gross violations of humanitarian law in the Balkans over the last two decades, it has rightfully honored the mandate of the United Nations Security Council that created it. Ratko Mladic’s conviction is the culmination of this honorable legacy.

The court has sentenced the former commander of the Bosnian Serb Army during the Bosnian War (1992-95) to life imprisonment. Among Mladic’s many crimes was the infamous Srebrenica massacre. The conviction and sentence bring to an end an inglorious chapter in the bloody history of Balkans that will live on in public memory despite the large-scale convictions and other anti-impunity initiatives that followed.

The moral and jurisprudential basis for other international, domestic and hybrid criminal justice mechanisms delivering accountability in diverse geographical settings owes a great deal to the judicial might and creativity of the ICTY. It has been the lighthouse of the global accountability movement and a colossus among international judicial mechanisms along with the International Criminal Tribunal for Rwanda (ICTR).

The International Criminal Court, the permanent judicial accountability body for mass crimes, draws a substantial degree of moral confidence from the philosophy of the ICTY. As the ICTY winds up its operations with Mladic’s conviction, one can safely assume that the court has cemented its place in history as the conscience keeper of the global community.

The conviction was not easy to come by. Though Mladic was arrested in May 2011 in the farmhouse of a relative in northern Serbia and the trial commenced in 2012, the process of accountability started much earlier.  It involved struggle and resilience on the part of the ICTY against vested interests questioning the mandate of the court and its functioning amid a general contempt and indifference for international criminal law and its philosophy. Mladic too was on the run throughout the 1990s. But despite the limitations, the UNSC remained steadfast in its commitment to the institution.

Mladic’s conviction leaves a message for Asia. The verdict showed that subject to the will of the global community as reflected through the UN Security Council, it is possible to hold the high and mighty in Myanmar accountable for the plight of the Rohingya. If Bosnian Muslims and Croats could get justice, there is every reason to believe that the Rohingya deserve the same.

The exodus of the Rohingya in the wake of massive humanitarian violations is a chilling decline of human decency. The same judicial techniques and methods adopted for holding the high and mighty responsible for brazen violations in the Balkans can have an analogical application to give justice to the Rohingya.

However, the path to accountability is narrow and not many prefer to traverse through it. It is fraught with challenges, expectations and the weight of global aspirations.

Global geopolitics may be averse as well. Holding war criminals accountable is seldom the easiest of tasks for the international community.

The UN Security Council has never ventured to create international criminal tribunals on the lines of the ICTY or the ICTR over the last two decades. It has left transitional justice mechanisms to the discretion and freedom of domestic actors and has at best played a supportive role. Domestic accountability is unlikely in Myanmar unless there is a regime change, which looks highly improbable at this stage. The ruling establishment is firmly behind the atrocities unleashed against the hapless Rohingya, if not directly responsible.

The UN Security Council is abandoning the Rohingya in their darkest hour. It has so far failed to show any leadership on the issue. It is unlikely for any accountability measure to emerge in Myanmar unless the UNSC acts with unison to tackle the issue head on

There is scope for individual accountability, since much of the ethnic cleansing has happened at the behest of the military with a clear and identifiable line of command. The political executive has accorded tacit support to the brutalities of the military that has created a cruel cocktail of institutional high-handedness and apathy that today permeates the body politic of the fast-failing nation.

Myanmar lies at the cusp of hope and despair, if only the international community were to act. All indications to the contrary exist despite lofty assertions made publicly.

The UNSC is abandoning the Rohingya in their darkest hour. It has so far failed to show any leadership on the issue. It remains truncated and divided, caught in the whirlwind of global machinations losing the plot to geopolitical compulsions and other narrow sectarian concerns.

It is unlikely for any accountability measure to emerge in Myanmar unless the Security Council acts with unison to tackle the issue head on. Nothing on record betrays any such intentions so far, though the last word on answerability in Myanmar is yet to be spelled out.

The veto power is proving to be the death knell of human rights and the arch-enemy of accountability. The top brass of the military leadership in Myanmar will not, at least in the immediate future or possibly ever, face the humiliation of facing a criminal trial for the ethnic cleansing that has caused a global outcry.

Myanmar is not a Serbia for the UN Security Council as of now, but it has already become one for the international community. There are hundreds of Mladics in Myanmar, yet not one visible to the global community.

The foray of international criminal justice into uncharted territories such as Asia has begun. With ICC chief prosecutor Fatou Bensouda  requesting authorization for investigating violations of international law in Afghanistan, it is now clear that criminal accountability for impunity is undergoing a process of globalization.

Punishing rape and sexual violence committed during an armed conflict was many of the original contributions of the ICTY. There can be no better application of this jurisprudence than in Myanmar.

Despite the humanitarian catastrophe in Myanmar not being the result of a war or a conventional armed conflict in the Balkan sense, the application of international criminal law is not precluded. Brute force and violence resulting from paranoid nationalism are the common cause for both humanitarian tragedies.

By all accounts, crimes against humanity have been committed in the country. Genocide would require a broader jurisprudential determination. Rakhine state is the modern Srebrenica even without an ostensible massacre that singularly captures the evocative despair of the situation.

As the fallen hero of the Serbs is destined to rot in prison, will the authors of the Rohingya tragedy in Myanmar one day witness the same fate? Destiny alone cannot answer that question. The UNSC should.

Ratko Mladic’s conviction will hover around the conscience of global policymakers in the context of Myanmar, and one day we could witness the creation of a criminal tribunal for Myanmar to identify and punish the Mladics of the country.