Opinion: The law is not enough to stop war crimes

Friday was the 30th anniversary of the deadliest massacre in Europe since World War II, when Bosnian Serb forces under Gen. Ratko Mladic overran an area meant to be protected by the United Nations. Soon after, they proceeded to execute more than 8,000 Bosnian Muslim men and boys.

The magnitude and audacity of the slaughter shocked the world and spurred international prosecutions, making it one of the rare times that a genocide has been prosecuted since the Holocaust. The International Criminal Tribunal for the former Yugoslavia indicted and took into custody 161 people. Some 90 were convicted, including Mr. Mladic and Radovan Karadzic, the Bosnian Serb political leader, both of them for crimes that included the genocide in Srebrenica.

The prosecutions played the important role of punishing and marginalizing these leaders, individualizing guilt in lieu of broad collective blame, reaffirming the rule of law and paying tribute to the victims.

But Srebrenica also illustrates the limits of the law, especially when societies fail to adequately acknowledge such atrocities and eliminate the hatred that led to them. That has lessons for other potential prosecutions for more recent and ongoing conflicts, from Gaza to eastern Democratic Republic of Congo.

Today, denial of the Srebrenica genocide is the shameful policy of Republika Srpska, the largely Serbian part of Bosnia and Herzegovina where the killings occurred. Convicted war criminals are publicly celebrated by some. A recent history curriculum for elementary schools portrayed Mr. Mladic and Mr. Karadzic as heroes and omitted their convictions. In neighboring Serbia, President Aleksandar Vucic also rejects the term “genocide,” despite the international tribunal’s convictions and a parallel ruling by the International Court of Justice.

The most powerful voices for truth have come from the Mothers of Srebrenica. These women, many of whom lost entire families in the massacre, have spent decades demanding a full accounting of what happened. They are still waiting for their society — and their neighbors — to acknowledge what was done to their loved ones. They face harassment and threats. Some are still waiting to bury their dead.

Rwanda presents another particularly dangerous failure to acknowledge abuses. The International Criminal Tribunal for Rwanda, like its Yugoslav counterpart, was a resounding success. It prosecuted perpetrators of the 1994 genocide of Tutsis by forces led by Hutu extremists, convicting and sentencing more than 60 people including former Prime Minister Jean Kambanda and the army colonel who was the genocide’s mastermind, Théoneste Bagosora.

But the tribunal has failed to prosecute members of the Rwandan Patriotic Front, the rebel group that ended the genocide and assumed power, for its own atrocities. Under its commander, Paul Kagame, who went on to become Rwanda’s long-serving president, the Front executed an estimated 30,000 people, by some accounts, while stopping the genocide, and then in the aftermath.

Mr. Kagame resisted any effort by the international tribunal to prosecute his forces for this mass murder, going so far as to threaten noncooperation with genocide prosecutions if it dared. In Rwanda, discussion of these atrocities — and indeed, any public criticism of Mr. Kagame’s dictatorial rule — can be a route to imprisonment.

Emboldened by this impunity, Mr. Kagame presides over a police state at home and periodically has invaded neighboring eastern Democratic Republic of Congo to mine its mineral riches. The International Criminal Court has opened an investigation into the most recent round of atrocities in Congo but so far has not charged any Rwandan official.

In Gaza, Israeli forces are alleged to have committed systematic war crimes and face accusations of genocide. The International Court of Justice has ordered provisional measures to prevent genocide, and the International Criminal Court has charged Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant with the deliberate starvation and deprivation of Palestinian civilians.

Yet the Israeli government has responded contemptuously, ignoring the I.C.J. orders and absurdly attacking the I.C.C. as “antisemitic.” President Trump has reinforced this lawlessness by outrageously imposing retaliatory sanctions on the I.C.C. prosecutor who brought the charges against the Israeli officials, along with several judges. That not only reinforces impunity for mass atrocities. It also impedes the prospect for lasting Israeli-Palestinian peace.

Some of the earlier examples of international justice, the Nuremberg and Tokyo tribunals that addressed German and Japanese atrocities during World War II, illustrate the complexities of prosecuting war crimes. Both prosecutions were plagued by selectivity — war crimes by victorious allied forces were ignored, denazification was limited by Cold War competition, the role of Emperor Hirohito in the war was deliberately overlooked — but they nonetheless set an important precedent of accountability.

Yet Germany and Japan responded very differently. The German government ultimately acknowledged its role in the Holocaust. A memorial to the six million Jewish victims occupies a prominent place in central Berlin. Each year the nation observes Holocaust Remembrance Day. By contrast, Japan has largely swept its crimes under the rug. Leading politicians have periodically visited the Yasukuni Shrine, which honors Japan’s war dead, including some of the most culpable war criminals. The Japanese government’s acknowledgments of the sexual slavery that it imposed on women across Asia under occupation — the euphemistically named “comfort women” — have been grudging and partial.

This differing response has perhaps informed the distinct international roles that the German and Japanese governments now play. Germany has emerged as a leading voice for human rights in Europe and globally. Japan, on the other hand, has been a study in reticence, particularly regarding standing up to repressive regional neighbors like China, Cambodia and Myanmar.

As the world gathers to honor the victims of Srebrenica, what remains absent is any sincere recognition that genocide was committed. While Serbia and the Republika Srpska have issued apologies over the years, neither has accepted the tribunal’s judgment — and both continue to glorify war criminals and deny genocide, even 30 years later. Srebrenica should have been a model for post-genocide accountability. Instead, it stands as a case study in how legal truth, without official and societal acknowledgment, can entrench exclusionary nationalism.

Along with the pursuit of justice, nations and international organizations must pressure state and political leaders to acknowledge their governments’ misdeeds. They must push for systemic truth-telling through education and memorialization, including by issuing public apologies, reforming school curriculums, removing monuments to war criminals and supporting meaningful remembrance. These political steps are needed to stop perpetrators from rewriting the narrative, so that justice can take root and pave the way to rights-respecting societies.

Dunja Mijatovic is a Bosnian human rights expert and former commissioner for human rights of the Council of Europe. Kenneth Roth, a former executive director of Human Rights Watch, is a visiting professor at Princeton’s School of Public and International Affairs. This article originally appeared in The New York Times.