Mladic, Bin Laden, and Justice for Mass Murder

On June 3, Ratko Mladic, the former Serb commander, faced an international tribunal. The charges held Mladic "individually criminally responsible" for genocide, crimes against humanity, and war crimes that he "planned, instigated, ordered, committed, and/or aided and abetted." The worst of these deeds was "a joint criminal enterprise to eliminate the Bosnian Muslims in Srebrenica," a campaign in 1995 that killed more than 7,000 Muslim men and boys through "both organised and opportunistic executions."

If that's what he did, why bother with a trial? Couldn't we have had a fly-in summary execution? After all, Mladic killed many more than Bin Laden did. He, too, was on the most wanted list, and he, too, was sheltered by another government. One might point out that Mladic is a war criminal and Bin Laden was a terrorist. The distinction is not that simple. Yes, Mladic wore a military uniform, and Bin Laden, after the Mujahideen days, did not. But both deliberately targeted civilians and killed thousands of them. Both sought to terrorize populations into giving political concessions.

U.S. leaders also made it clear that fighting Bin Laden was not a matter of law enforcement but a matter of war. From that perspective, Bin Laden was in part a war criminal.

So, why the difference? I hope it's not because Bin Laden claimed to be Muslim and Mladic evidently is not. I'd like to believe that we've progressed from an era when identity determined punishment.

Could it be about the identity of victims? Bin Laden targeted Americans, and Mladic targeted Bosnian Muslims (and Croats). Is killing Americans qualitatively different from killing Muslims?

Or, could it be that Mladic was protected by a European government instead of a Third World government? By international law, state sovereignty is inviolable, but historically, Western powers have considered Third World sovereignty more of a nuisance than a barrier to their military adventures.

All told, there is no moral logic that can consider the killing of 7,000 Muslims a less grievous offense than the killing of 3,000 Americans. Both are mass murder.

So the difference in the delivery of justice must be about the convenience of holding trials, not about morality.

One such convenience is obviously rooted in domestic politics. In America, nothing boosts the national security credentials of policymakers like visible military feats. Taking Bin Laden to trial would have given Republicans another opportunity to lambast Democrats as "soft" ahead of the 2012 elections.

The other convenience may be in the politics of truth. Fair trials involve a meticulous retelling, before an unencumbered audience, of what actually happened. If truth is the first casualty of war, then its restoration is the first step in delivering justice.

The laws of all rights-based societies are abundantly clear about this. U.S. Attorney General Eric Holder also said recently, "I actually think that the dotting of the i's and the crossing of the t's is what separates the United States, the United Kingdom, our allies, from those who we are fighting."

Perhaps it's the very process of retelling that deterred U.S. policymakers. Like Saddam Hussein, Bin Laden also received support from America during an early phase of his militancy. Although many have written about it, there is no consensus about its extent. But its potential exposition in a public courtroom would have proven politically inconvenient.

And so, the action in Abbottabad was about piercing the crosshairs, not crossing the t's. It turns out that Bin Laden was unarmed. It turns out that no serious attempt was made to capture him, at least as indicated by the time elapsed between his sighting and his killing.

By defending such action as "lawful" and "consistent with American values," U.S. leaders have undertaken an inventive interpretation of the meaning of rights.

While liberals like me criticize such creativity, cynics in Muslim countries are not surprised. To them, an inconsistent moral record is precisely what has been consistent about American foreign policy.

Moreover, they see executions as consistent with American values. After all, among Western industrial democracies, the United States is the only country that still practices capital punishment. It carried out 46 executions in 2010, placing it fifth worldwide, after China, Iran, North Korea, and Yemen. The exercise of the death penalty still brings out cheers among right-wing groups gathered outside U.S. prisons.

Kudos to the cynics. I don't like their argument, but by highlighting culture, they perhaps rest justice on slightly better footing than what I had earlier suggested. For it would be a travesty indeed if the delivery of justice for mass murder were largely a function of political convenience.