After four bloody years of war and 16 years of a Dayton peace period, the most wanted war criminal is, at last, in custody.  The International Tribunal for Former Yugoslavia (ICTY) pressed charges against Ratko Mladić in 1995, indicting him for genocide, crimes against humanity, crimes committed against civilians and against places of worship on the territory of Bosnia and Herzegovina, as well as for sniping campaigns against civilians in Sarajevo and taking UN peacekeepers as hostages. The Serbian president, Boris Tadić, victoriously addressed the reporters of the emergent press conference and said the word so longed-for in the last sixteen years: arrested. But the news was greeted differently in Bosnia’s territorially and ideologically divided society. While some celebrated, others mourned the arrest. Again, it seems, Bosnia’s painful divisions still cut to the core of the state’s existence.

Milorad Dodik, the Prime Minister of the Serb-majority entity of Bosnia Herzegovina, Republika Srpska (the country is federally divided in two, almost literally asserting the battle-lines on which the war ended in 1995) diplomatically reflected that Mladic’s arrest was a fulfillment of a Dayton peace accord obligation to which all countries in the regions have submitted. But its worth noting how Dodik, a controversial but influential figure on the Bosnian political landscape, did not elaborate in his usual manner, but rather sub-textually criticised the Serbian official establishment, reinforcing old ideological battle-lines. Dodik does not hide his support for the war criminal Biljana Plavšić, who repented in a quite spectacular way, and was sentenced for only 11 years for crimes against humanity. (Thanks to Plavšić’s bargain with the ICTY, she avoided the charge of genocide as well as seven more charges).  It was Dodik who sent has sent the Republika Srpska official plane for her, and personally welcomed her in Belgrade.  Republika Srpska officials never openly spoke about Mladić as a hero, but by the deeds they have shown an open respect to Mladić’s project and deeds. Dodik is certainly sympathising with his some of his co-citizens, who have organised protests and glued Mladić posters all over the Serb-majority entity.

After Mladić’s arrest, Dodik concluded his speech, defiantly, by stating that Republic Srpska is fighting an international struggle for bringing all those who committed war crimes before justice, clearly indicating that Serbs were not the only side to commit crimes in the 1990s wars. Here Dodik played into the classic game of ethnic-politics. Yes, as he stated, war crimes were committed on each side during the conflict. But using the arrest of Mladic to stress this fact equalises the actions of all three sides in the conflict, thereby denying the unique legal and moral status of genocide against Bosnian Muslims that has been proven by the International Court of Justice (ICJ) and ICTY verdicts.  Not only is this ‘moral equivalence’ between genocide and other atrocities by Dodik and other Republika Srpska officials a misreading of international law, but it plays into the stereotype propagated by Western politicians and journalists about the Balkans: that the conflict was ‘inevitable’, all involved were equally to blame, because the Balkans are inherently violent.

Genocide remains an open question among most of Republic Srpska officials who deny genocide with impunity, and, according to Amnesty International's annual report, glorify perpetrators of this crime; moral and ethical debates regarding this question are not held. Civil society representatives sporadically issue condemning statements, but no campaigns in raising awareness of the importance of naming the crime are initiated, despite the fact that the recognition of Srebrenica as a genocide on national and domestic levels is one of the key hopes of organisations such as the Mothers of Srebrenica.

The international community representatives appear to turn a blind eye to such rhetoric: despite the fact that the European parliament has adopted a resolution on Srebrenica, the European Commission mission in Bosnia and Herzeogivna never hold Republika Srpska officials accountable for openly denying the crime of genocide. While many EU members have laws that sanction genocide denial, a hypothetical silence in the Bosnian case is evidently acceptable to them. The poor substantial commitment to a war-crime policy has resulted in accepting narratives based on genocide denial, and these narrative have been pushed into mainstream policy. These trends are common not only among politicians but also among the general population. In other words, the denial of genocide is both institutionally rooted in the current political system and espoused in daily social and political discourse.

Mladić’s intertwined relationship with Republika Srpska operates on a number of levels: he is a father of the idea of Republika Srpska; he is the great warrior of its execution; he is the martyr, the Messiah and the victim. “Republika Srpska Bosne i Hercegovine” was established in January 9th 1991 by the Assembly of Bosnian Serbs. The decision stated that territories where 50% of the population voted against dissolution of Bosnia and Herzegovina from Yugoslavia and those from which Serbs were cleansed during the Second World War genocide and WW2 atrocities committed against the Serbs would be the core of the new territory. The Assembly eventually erased “Bosne i Herzegovina” from its official name.

The existence of such an entity raises the question of its legitimacy: can a territory conquered by mass murder, rape, ethnic cleansing and genocide be legitimate? The main principal in criminal law is that all the benefits and profits acquired by illegal act are illegitimate. But territorial discussions don’t go in this direction; rather the reverse. Dodik repeatedly threatens the existence of the state with the secession of Republika Srpska from Bosnia and Herzegovina. The secession rhetoric is embedded into the core of Republika Srpska policy and political discourse, brought out at crucial moments for the state of Bosnia and Herzegovina.  Čedomir Jovanović, the president of the liberal party of Serbia, reflecting on Mladić's arrest, stressed his hopes that this will lead to the transformation of the Serbian people, particularly regarding the offical policy of Serbia towards Bosnia and Herzegovina, since he accepted that Mladić and his project will be convicted for genocide. Yet while Mladić is ill, pale, and weak, his dream is stronger than ever.

Moreover, the controversial creation and endorsement of Republika Srpska by the international community was not the only way in which the seeds of conflict were planted into post-war Bosnia.  It’s worth remembering that the Dayton constitution, which is still the current constitution of Bosnia, was little more than an Annex on a peace accord, written in English and signed by the war-time leaders of Croatia, Serbia and Bosnia: Milosevic, Tudjman and Izetbegovic.  In other words, the document that still dictates the political structure of Bosnia was one signed by war criminals.  When the residue of the 1990s tragedy is so intimately stitched into daily political life, talk of ‘justice’ – the word frequently used in the coverage of Mladic’s arrest – seems a little optimistic, to put it mildly.  In 2011, Bosnia and Herzegovina is not even a sovereign state, but rather a kind of protectorate of the international community, frozen in perpetual limbo: the highest political office is the internationally-appointed Office of the High Representative, which, particularly in the first decade after the war, had considerable power to stop domestic politicians by evoking the Bonn Powers.  The highest judges working with the war crimes section of the court are still international: whilst this may be necessary to ensure justice and relative stability, any reading of Bosnia and Herzegovina’s political structure gives one the impression that the citizens are being punished for having genocide and war crimes committed against them, not even being allowed to fully rule themselves in 2011.  The consociational nature of the Dayton constitution also entrenches divides, enforcing compulsory ethnic identification, despite the fact that this aspect of the Constitution was declared incompatible with human rights law by the European Court of Human Rights in 2009.  The education system largely mirrors this frozen purgatory, dividing children along ethnic lines and teaching them ethno-centric history and language classes, in turn reinforcing exclusivist narratives of the war.

Transitional justice in such a framework leaves much to be desired.  At the most basic level: the idea of ‘justice’ of any kind seems difficult when one half of the country is often seen by the other half as a product of and reward for ethnic cleansing and genocide.  Moreover, just like the foreign, imposed Dayton Constitution, most efforts to bring those accountable for the atrocities of war to justice have been alien, foreign and far-removed, taking place at the Hague – the ICTY in turn bears the brunt of accusations of bias from all sides.  Even aside from its failures of duty and blunders (the suspicious destruction of 1,000s of pieces of evidence recovered from mass graves in and around Srebrenica under Carla del Ponte’s time as Chief Prosecutor is one of the most striking examples) the ICTY’s overwhelming focus on the ‘top dogs’ -- Karadzic, Mladic, Milosevic, Plavsic and Hadžić -- has meant the focus has never shifted to societal-level justice. RECOM, a proposed regional truth commission that hopes to uncover the truth about war crimes committed during the 1990s, has still been unable to mobilise sufficient will from the political elites to begin its work.   As RECOM notes, eleven years after the war not one successor state of Yugoslavia had compiled a list of those killed or missing during the war.  ‘Justice’, or even recognition of crimes committed, therefore seems to be something that occasionally happens at the Hague, hundreds of miles away, much more than a decade after the atrocities were committed.  On the ground, on the other hand, poisonous ethno-nationalist political rhetoric, genocide denial and the celebration of war-time leaders are still permitted in the discourse of politicians, the media and citizens – if ‘citizens’ is the right word to describe the Bosnians who live in this protectorate-state purgatory.

In this way, the failures of transitional justice – and the failures of international institutions intended to ‘help’ Bosnia and Herzegovina, such as the UN and the ICTY – have actually poisoned the rhetoric further, by preventing a comprehensive, cohesive narrative of the war to replace the divided narratives of ‘only one side suffered’.  This in turn feeds into the false neutralities and false equivalences that sit comfortably with west European stereotypes of the Balkans: “they were all as bad as each other” “it was tribal, ethnic, inevitable, eternal” “so there’s no point even trying to find out what happened, or take action against the individuals who were responsible for specific crimes”.  

With continued genocide denial, with compulsory ethnic identification in political life that violates human rights law, with the state still severed into two entities and Republika Srpska politicians openly speaking of secession, with the countless war criminals who will never be brought to justice, and a new generation of children being raised in a climate of mutual hostility and fear – is the arrest of General Mladic really a victory? Or is it, yet again, a symbol of how the world has so frequently failed Bosnia, making up for its failures only too little and too late?