Prosecuting Mladic.

Mladic on trial.

I don’t think anyone is inherently evil. There are human beings who make bad choices, do bad things; some of those things may even be unforgivable. People can be defined by their choices, sure. But I don’t believe in what some people call “moral monsters.” Every person who has made bad choices and done unforgivable things could have, given different circumstances or different ways of looking at the world, made good choices, or perhaps simply been unremarkable, a bystander or beneficiary ignoring harm nearby. We all might make the wrong choices if put in desperate situations. Those of us who are lucky will never have to find out what we would have done.

One of the currents running through some of the prosecution’s closing arguments in the case against Ratko Mladic at the International Criminal Tribunal for the former Yugoslavia was that any evidence we might have that he ever did a kind thing or uttered a generous turn of phrase should be taken to be a lie. Something like, even a broken clock tells the right time twice (or once) a day (depending on the clock). But that’s too easy. As much as it might be easier for me (given how hard it was for me to sit through the three days the defense had to sum up their arguments defending his actions) and anyone else to believe that Mladic is just evil and therefore in a different category from the rest of us, that kind of ease is dangerous. It’s dangerous because it turns us away from the reality that ordinary human beings are responsible for things like genocide and war crimes.

Given that I just spent a week and a half sitting in the same room with Mladic’s son and (I’m guessing) grandchildren while watching the closing arguments from both sides, it’s especially hard for me to make an argument that Mladic is simply a monster who never cared about anyone nor was ever cared for in return. In fact his claim is that he did everything he did not to facilitate the murder of others but to protect his own kind from murder at the hands of a militant enemy. (The evidence may not be on his side, but that doesn’t mean he is lying when he makes this claim. People are moved to actions both good and bad by false beliefs all the time.)

So, while the prosecution team was making that particular part of the argument — that any kind thing Mladic ever said was necessarily a lie — I wondered why it was necessary. Indeed, there’s even evidence that there were periods in Mladic’s life when he considered himself Yugoslavian and didn’t care much for the difference between Serbian, Bosnian and Croatian ethnicities. That was true of most citizens of the former Yugoslavia for a long time, with much intermarriage and friendship and just not worrying about ethnic difference being a defining national characteristic. I think it’s important to admit that Mladic — “even Mladic” — could have thought that way, because genocide doesn’t only happen because a bad man orders people to kill people. It happens because at least some of the people who receive the orders believe they are being ordered to do the right thing. And that happens because a climate of hatred is put into place by political forces. (I’m not ignoring the fact that many who acted on orders may have felt that had to choose between killing and being killed, which is different from feeling you are fighting for a just cause.) A documentary filmmaker from Bosnia whom I saw speak on a panel on the Mladic case recently, discussing the history in the former Yugoslavia of long periods friendship and lack of conflict between groups, said something like: “just remember, it was possible to destroy all that — that good will — and now it is much easier for everyone to turn to war.”

Of course, the defense tried to make a LOT out of a pretty narrow range of examples of Mladic being a good guy. It actually is fairly difficult to make a good guy argument about this particular defendant. So I suppose the prosecution wanted to make that point (that he’s just not really a good guy type), by showing how the instances referred to by the defense were really nothing to celebrate. Or perhaps they were trying to undermine any defense claims that good behavior ought to mitigate punishment in some way. (I had lunch with one of the prosecutors the day after they wrapped their arguments, and was thinking of asking about this but the conversation ended up being focused elsewhere.)

Still. In a set of court proceedings dealing with past criminal behavior in a region still divided by ethnic conflict, maybe it’s not necessary to demonize anyone to the point of their having no capability of positive action. Especially given that the first thing the defense said when it was its turn to speak was basically: Mladic is being called guilty because he is a Serb and for no other reason, because this tribunal has criminalized being a Serb, and this is a kind of impermissible collective guilt. They added: history will judge these judges for how they judge Mladic. (That may be true, but perhaps not in the way the defense hopes. History is tricky like that.) Anyway, if you know anything about the history and the present moment of the region of the former Yugoslavia, you know that this is some dangerous inflammatory speech that already has considerable purchase in Serbia. There is widespread belief that the tribunal is a witch hunt meant to punish only Serbs in a war where losses were equal on all sides. Again, that’s not true, but whether or not it’s true doesn’t seem to matter to many at present. The ICTY exists in part to make such false beliefs less possible. From some angles it seems to have failed in that particular goal, though perhaps not utterly. It has succeeded in proving that many crimes did occur using rigorous legal standards of proof; it has helped identify the bodies of many thousands of murdered human beings; it has not let people who once had the power to spread such violence get away with it. That matters.

But there’s a way in which the prosecution’s insistence that there’s no way Mladic ever said or intended anything good ends up according with this objectionable view advanced by the defense. As I was listening, I wished they handled it otherwise.

This is a weak meditation on strategy, however, because I am no fan of Mladic and I think the prosecution did a good job making its case overall. I was actually thrilled when two of the four prosecutors, toward the end of three days of prosecution closing statements, let go of their legalistic professional neutrality and spoke in impassioned and moralistic turns about why this case matters so much. It matters because Mladic is alleged to have ordered murders that amount to genocide and ethnic cleansing of whole communities. He is alleged to be responsible for the deaths of over 7000 men and boys in Srebenica alone, along with the displacement of all the women, children and elderly persons attached to the lives of those men and boys. He is alleged to have authorized snipers to shoot at civilians in Sarajevo, and allowed inhuman prison camps to thrive, and so on. 25 years later, many who survived the war have not fully recovered, and the harm gets passed down through generations. As I mentioned in a more personal context recently, any loss of a loved one takes with it so many stored up hopes, promises and possibilities, and thus loss always radiates outward in both time and space. Throughout the trial Mladic showed no remorse, rejected the authority of the court over him, and consistently treated the proceedings with disrespect.

I’ve been watching this case in person for a few weeks every year since it commenced in 2012, and have kept tabs on developments between visits. So I’ve heard various of the longer versions of arguments by both defense and prosecution, heard survivors testify about their losses, listened to experts talk about exhuming mass graves, etc. I was excited to be able to be there for closing arguments because I wanted to see how both sides would wrap it up. But I had not stopped to think how difficult it would be for me to sit through three whole days of an argument in defense of Mladic. Wow. To have it all condensed like that, oh, it was hard to take.

I was there last year when the judges allowed the prosecution to reopen their case briefly to introduce new evidence from mass graves. I learned a lot about the decomposition of bodies and how the science of ballistics works, and I also felt overwrought by what all the science couldn’t make entirely abstract: the huge numbers of people killed. Of course the defense was given the chance to cross-examine witnesses or respond to prosecution arguments. And I knew they were doing their jobs, saying what they said. The system, in order to work, requires defense lawyers who take their jobs seriously. But I couldn’t get the past the idea that sometimes decency might make a person want to just say, about a few things, “OK, you got me, that was dastardly.” I couldn’t not think that, sitting there listening to defense attorneys suggest that men and boys dressed in civilian clothing, wearing shoes like clogs and summer sandals, shot en masse in the back of the head and dumped in mass graves — mass graves that were later disturbed and moved elsewhere, so that parts of the same bodies were found at multiple sites, and this was clearly an attempt to disguise mass murder — that all of those bodies might have been part of a militia legitimately killed in battle. No, sir, that — I cannot stomach.

So those last three days, it was all of that, every grasping-at-straws argument to defend the indefensible, condensed into the worst soup ever. According to the defense, the prosecution’s request to the judges to strike back (in their decision and sentencing) at Mladic for his actions is “vigilante revenge” while Mladic’s cleansing of Srebenica was justified military activity that regrettably included some private acts of revenge not ordered by Mladic. The forceful transfer of populations from one place to another was actually humanitarian evacuation authorized by Mladic so people would be safe. Any crimes that did happen were never ordered by anyone, and all Mladic ever did was try to defend his homeland from an insurgency. Three days worth of that. That’s the defense team’s job — to introduce reasonable doubt if possible. But for me, as an observer, it was hard. It made me aware of my own and others’ confirmation bias. It also made me reflect on how different people come to believe different things are true or not true. Like I said, overall I think the prosecution has made its case and will prevail in many if not all of the charges brought against Mladic. That will be justice, should it come to pass. But, as I said when discussing the Ongwen case, it doesn’t bring back the dead, rebuild lives, or facilitate reconciliation between estranged ethnic groups back in Bosnia.

There is much more to be said, including some unintended comedy included in one defense lawyer’s obsession with “the tip” (complete with gesticulation) of the burden of proof pyramid, but I’ll come back to that later.

yes, the judges, lawyers and registrars wear fancy bibs.