THE FAILURE OF DETERRENCE
The reactions of Slobodan Milosevic and Joseph Kony to international legal sanction threats
From left to right: Slobodan Milosevic, the ICTY, the ICC and Joseph Kony
Master thesis by Tom Buitelaar
Supervised by P.A.M. Malcontent, PhD
Utrecht University
International Relations in Historical Perspective
2012-2013
16 December 2013
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"The belief in a supernatural source of evil is not necessary. Men alone are quite capable of every
wickedness."
- Joseph Conrad, Under Western Eyes (1911)
"Light thinks it travels faster than anything but it is wrong. No matter how fast light travels, it finds the
darkness has always got there first, and is waiting for it."
- Terry Pratchett, Reaper Man (1991)
"Evil is always unspectacular and always human. And shares our bed...and eats at our table."
- W.H. Auden, Herman Melville (1939)
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Contents
Introduction ........................................................................................................................................... 8
Chapter 1: Analytical Framework ..................................................................................................... 17
§1.1 Understanding the Man ............................................................................................................. 17
§1.1.1 Rationality .......................................................................................................................... 17
§1.1.2 Motivation .......................................................................................................................... 27
§1.1.3 Personality.......................................................................................................................... 32
§1.2 The relationship between the court and the criminal ................................................................. 36
§1.2.1 Deterrence .......................................................................................................................... 36
§1.2.2 Extralegal Sanction Threats ............................................................................................... 46
§1.2.3 Legitimacy .......................................................................................................................... 49
§1.3 Summarizing the findings of this Chapter ................................................................................. 53
Chapter 2: Slobodan Milosevic and the Yugoslav wars ................................................................... 56
§2.1 The conflict in the former Yugoslavia....................................................................................... 56
§2.2 Slobodan Milosevic, “good communist”, “Serb national hero”, and “Butcher of the Balkans” 74
§2.2.1 A ‘Mad Man’ or a Calculating Mastermind: the Rationality of Slobodan Milosevic ........ 74
§2.2.2 Milosevic’s motivation........................................................................................................ 77
§2.2.3 The personality of Slobodan Milosevic .............................................................................. 80
§2.3 Slobodan Milosevic and the International Criminal Tribunal for the former Yugoslavia ........ 84
§2.3.1 The International Criminal Tribunal for the Former Yugoslavia ...................................... 84
§2.3.2 Milosevic’s legal responsibility for crimes committed during the Yugoslav wars ............. 87
§2.3.3 The factors influencing the deterrence capability of the ICTY ........................................... 90
§2.3.4 The social context and extralegal sanction threats ............................................................ 95
§2.3.5 The legitimacy of the ICTY ................................................................................................. 98
§2.4 Summarizing the findings of this chapter ................................................................................ 102
Chapter 3: Joseph Kony and the International Criminal Court .................................................. 104
§3.1 Joseph Kony and the conflict in Northern Uganda.................................................................. 104
§3.2 Joseph Kony, “messianic madman”, “freedom fighter”, “devil” ........................................... 122
§3.2.1 A bunch of lunatics led by a psychopath? Joseph Kony’s rationality .............................. 122
§3.2.2 Mony me ngom and mony me polo: Kony’s motivation .................................................. 126
§3.2.3 “Somehow you believe”: Joseph Kony’s personality....................................................... 130
§3.3 Joseph Kony and the International Criminal Court ................................................................. 132
§3.3.1 The International Criminal Court .................................................................................... 132
§3.3.2 Kony’s legal responsibility for crimes committed in Northern Uganda........................... 138
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§3.3.3 Factors influencing the deterrence capability of the ICC ................................................ 140
§3.3.4 Extralegal sanction threats............................................................................................... 145
§3.3.5 Legitimacy of the ICC ....................................................................................................... 148
§3.4 Summarizing the findings of this chapter ................................................................................ 153
Conclusion .......................................................................................................................................... 155
Literature used .................................................................................................................................. 162
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Acknowledgments
This work has taken almost six months to complete, which is quite a bit longer than I had initially
expected. These six months were interrupted by an internship at the Dutch Ministry of Defense and a
four weeks holiday in France. I have found the process of writing a thesis to be both fun and, at times
frustrating. It was fun because I love the subject, seeing as it combines my interest in psychology and
criminology with the history of violent inter- and intrastate conflict, and I enjoy doing research work. It
was frustrating because time went much faster than I expected and the amount of work that had to be
done, including the thesis work for my Master’s in military history, kept pressing on my shoulders. Still,
some people have helped in making fun prevail in the end.
First, I would like to thank my thesis supervisor, dr. Peter Malcontent, for reading through all
my work, keeping my nose in the right direction, and supporting me along the way. Moreover, I would
like to thank him for introducing me to the subject of Transitional Justice during a course he gave, which
sparked my interest and gave rise to the ideas that were the basis of this thesis. Second, I wish to express
gratitude to Jorne de Bruin, Hans Buitelaar, Annelein Koot, Wouter Koot, Justus Reisinger, and Jeanine
de Roy van Zuijdewijn for reading and commenting on earlier drafts of (parts of) this thesis. Of course,
it must be stressed that any faults that remain are entirely my own. Third, I would like to note that this
product is the result of studying history for a little over five years, years during which I was supported
by my mother and father, who enabled me to devote most of my life to my studies and always supported
me at the right moments. Lastly, I am eternally grateful to Annelein Koot, who has made me enthusiastic
for psychology and criminology, and has suffered through me being a boring boyfriend during my days
behind the computer.
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Introduction
In January 2013 more than fifty countries urged the United Nations Security Council to refer the
situation in Syria – the civil war between the government forces of Bashir al-Assad and opposition
fighters which started in March 2011 and continues today – to the International Criminal Court (ICC).1
By doing so they hoped to “send out an unequivocal message” that all parties should respect international
humanitarian law, a message that would have to have “an important dissuasive effect”.2 Indeed, Amnesty
International stressed that “[p]eople often underestimate the deterrent effect a referral would have – try
asking senior Syrian officials with blood on their hands or the leaders of groups like ISIS and Jabhat al
Nusra if they would feel confident in a dock at The Hague”.3Although both France and Britain backed
the proposal, the three other veto-holding powers of the Security Council – China, Russia and the United
States – did not respond. In the meantime, with the international community lacking the will – and/or
the capacity – to forcefully put an end to the Syrian conflict, the civil war rages on, with the latest
numbers indicating at least 120.000 dead and over a million refugees.4
It would not be the first time for the Security Council to refer a situation in a state that has not
ratified the Rome Statute to the jurisdiction of the ICC. In March 2005, with eleven votes in favor and
four abstentions, it passed Security Council Resolution 1593, which gave the ICC a mandate to
investigate potential crimes against humanity and other human rights abuses in Darfur, Sudan, where
the Sudanese government was allegedly committing genocide.5 Furthermore, in February 2011, Security
Council Resolution 1970 was passed, which referred the quickly escalating civil conflict in Libya to the
jurisdiction of the ICC.6 Both referrals eventually led to arrest warrants. Top officials from the Sudanese
government, including the country’s president Omar Hassan Ahmad al-Bashir, were indicted for crimes
1
The ICC only has jurisdiction in states who have ratified the Rome Statute of 1998. Since Syria has not ratified
the Rome Statute, only the U.N. Security Council, under Article 13 (b) of the Rome Statute, can give the ICC the
jurisdiction to investigate allegations of human rights abuses and war crimes in the Syrian conflict.
See also: Amnesty International, ‘Dozens of UN members urge immediate ICC referral of ‘desperate’ situation
in Syria’, (14 January 2013), available online at: http://www.amnesty.org/en/news/dozens-un-members-urgeimmediate-icc-referral-desperate-situation-syria-2013-01-14 (6 December 2013).
2
Philippe Sands, ‘Referring Syria to the International Criminal Court is a Justified Gamble’, The Guardian, (16
January 2013), available online at: http://www.guardian.co.uk/commentisfree/2013/jan/16/syria-internationalcriminal-court-justified-gamble (6 December 2013).
3
Amnesty International, ‘The countries that support referring Syria to the International Criminal Court – and
some absent ‘friends’’, (20 September 2013), available online at:
http://www2.amnesty.org.uk/blogs/campaigns/syria-icc-international-criminal-court (6 December 2013).
4
Bassem Mroue, ‘Watchdog: More than 120.000 killed in Syria war’, The Washington Times, (31 October
2013), available online at: http://www.washingtontimes.com/news/2013/oct/31/watchdog-more-120000-killedsyria-war/ (6 December 2013).
5
Kenneth A. Rodman, ‘Darfur and the Limits of Legal Deterrence’, Human Rights Quarterly 30:3 (2008) 529560, 546. See also: United Nations Security Council, ‘Resolution 1593 (2005)’, (31 March 2005), available
online at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1593(2005) (6 December 2013).
6
John J. Llolos, ‘Justice for Tyrants: International Criminal Court Warrants for Gaddafi Regime Crimes’, Boston
College International & Comparative Law Review 35:2 (2012) 589-602, 593-594. See also: United Nations
Security Council, ‘Resolution 1970 (2011)’, (26 February 2011), available online at:
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970(2011) (6 December 2013).
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against humanity, war crimes and genocide.7 In Libya also, the ICC’s prosecutor decided to file a warrant
for the arrest of Muammar Mohammed Abu Minyar Gaddafi, the country’s longtime dictator. He was
accused of serious human rights abuses in the violent crackdown of the 2011 Libyan uprising.8
In both cases, the referral to the ICC was meant to deter future violence. However, in neither
case did the threat of international prosecution succeed in doing this. Although the worst violence in
Darfur may have stopped, the human rights abuses have not. Furthermore, Omar al-Bashir remains at
large, disputing the ICC’s legitimacy and evading arrest by staying in countries friendly to him. Libya’s
uprising eventually ended in the toppling of Gaddafi’s regime, aided by NATO airstrikes and military
assistance. Although the worst violence has therefore stopped, this was not due to the threat of
international prosecution, but rather due to Gaddafi being defeated militarily. After the toppling of his
regime, he was captured and killed by local militants, making it impossible for him to be held
accountable for his crimes. In the meantime, the situation in Libya has deteriorated, with armed militias
causing serious security concerns.9
The Security Council referrals to the ICC bear semblance to an earlier effort by the international
community to stop violence in a conflict area. In the early 1990s, Yugoslavia disintegrated and a
murderous struggle broke out between its different ethnic groups. On several occasions ethnic cleansings
took place and other grave human rights abuses were committed. In 1993, the Security Council
responded with Resolution 827, founding the International Criminal Tribunal for the Former Yugoslavia
(ICTY), which would have to keep a check on the violence by issuing arrest warrants for those most
responsible for mass atrocities.10 It was the hope of the international community that the threat of
international prosecution would put an end to the atrocities taking place. However, the ICTY did not
live up to this hope.11 The violence continued and did not end until NATO responded militarily with the
bombing campaign of Operation Deliberate Force. In the end, it was military force that succeeded where
the international tribunal had failed.
It can be argued that the creation of the ICTY was a symptom of the unwillingness of the
international community to intervene militarily in the Yugoslav conflict. By threatening with
prosecution, the international community could sooth its conscience by stating that it was at least doing
something, “[b]elieving that the establishment of an international tribunal and the prosecution of persons
7
International Criminal Court, The Prosecutor v. Omar Hassan Ahmad al-Bashir, Case No. ICC02/05-01/09, available online at: http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200205/related%20cases/icc02050
109/Pages/icc02050109.aspx (6 December 2013).
8
Llolos, ‘Justice for Tyrants’, 589-592. His indictment was withdrawn after he was killed in 23 August 2011.
9
Mohammed Omar Beayo, ‘Following the Revolution, Militias Continue to Terrorize Libya’, Al-Monitor, (27
June 2013), available online at: http://www.al-monitor.com/pulse/tr/contents/articles/politics/2013/06/libyamilitias-brute-force-benghazi.html# (12 December 2013).
10
United Nations Security Council, ‘Resolution 827 (1993), (25 May 1993), available online at:
www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/827(1993) (6 December 2013).
11
Lilian A. Barria and Steven D. Roper, ‘How Effective are International Criminal Tribunals? An Analysis of
the ICTY and the ICTR’, The International Journal of Human Rights 9:3 (2005) 349-368, 358.
9
responsible for the […] violations of international humanitarian law will contribute to ensuring that such
violations are halted and effectively redressed.”12 The same can be said of the referral of the Sudanese
case to the ICC.13 Although the Sudanese regime is showing no signs of giving in to the demands of the
international community, it is so far unwilling to forcibly stop Omar al-Bashir and deliver him to justice.
A similar analysis seems applicable to the call for a referral of the Syrian crisis to the ICC. The
international community is unwilling to forcibly intervene and it thinks the involvement of international
criminal justice is an effective alternative solution.
Despite this, the idea that international prosecutions can stop violence in conflict areas still
seems to be widespread, as is evident from the cases mentioned above. 14 All founding documents of the
international tribunals established so far stress the belief in the deterrent effect of legal prosecutions.15
For example, the ICC has as one of its guiding principles that it should “put an end to impunity for the
perpetrators of [the most serious crimes] and thus contribute to the prevention of such crimes”.16 The
former head prosecutor for the ICC, Luis Moreno-Ocampo, repeatedly stressed the same idea, stating
that “the value of the law to prevent recurring violence is clear”.17 Indeed, in the case of the ICC, the
assumption that the ICC would be able to pose as an effective deterrent, is an important factor that led
to its foundation18 and is “the central utilitarian argument in support” 19 of it, that “gives [it] its distinctive
rationale”.20 However, there seems to be hardly any evidence for this idea. Its proponents do not seem
to be able to cite any case in which violence stopped after the threat of international prosecution. Indeed,
the high amount of grave human rights abuses taking place today – with the war crimes in Syria21 and
12
United Nations Security Council Resolution 827.
Rodman, ‘Darfur’, 530.
14
Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter
Violations of International Criminal Law: A Theoretical Assessment’, International Criminal Law Review 10:5
(2010) 771-786, 772-773; Julian Ku and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate
Humanitarian Atrocities?’, Washington University Law Review 84:4 (2006) 777-834, 787-790.
15
James Meernik, ‘Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects’,
International Criminal Law Review 13:1 (2013) 169-190, 175. See also Ku and Nzelibe, ‘Deter or Exacerbate’,
779, who note that “contemporary justifications for these tribunals stress their potential to deter future
humanitarian atrocities”.
16
International Criminal Court, Rome Statute of the International Criminal Court, (17 July 1998), available
online at: http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE79CDC7CF02886/283503/RomeStatutEng1.pdf (6 December 2013).
17
Luis Moreno-Ocampo, ‘The Role of the International Community in Assisting the International Criminal
Court to Secure Justice and Accountability’, in: Raymond Provost and Payam Akhavan (eds.), Confronting
Genocide (Berlin: Springer, 2011) 279-289, 288
18
Georghios M. Pikis, The Rome Statute for the International Criminal Court. Analysis of the Statute, the Rules
of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments (Leiden: Martinus
Nijhoff Publishers, 2010) 13.
19
Payam Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial
Romanticism with Political Realism’, Human Rights Quarterly 31:3 (2009) 624-654, 628.
20
Ku and Nzelibe, ‘Deter or Exacerbate’, 789.
21
Tomas Jivanda, ‘Syria crisis: ‘Massive evidence’ implicates Bashar al-Assad in war crimes says UN’, The
Independent, (2 December 2013), available online at: http://www.independent.co.uk/news/world/middleeast/massive-evidence-implicates-bashar-alassad-in-war-crimes-says-un-8978193.html (10 December 2013).
13
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impending genocide in the Central African Republic22 just being a few of the examples – seems to
powerfully detract from the idea that international criminal prosecution exercises a meaningful deterrent
effect. Payam Akhavan, one of the ardent defenders of the deterrent power of international justice, has,
in his 2009 article ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial
Romanticism with Political Realism’,23 tried to cite three cases – Cote d’Ivoire, Sudan and Uganda – in
which, according to him, the threat of international prosecution has contributed to ending mass atrocities.
It is interesting to note, then, that in all three situations, violence has either continued or reignited despite
the ICC involvement. Joseph Kony, leader of the Lord’s Resistance Army and one of the men sought in
connection to the violence in Uganda, is still roaming Central-Africa and committing human rights
abuses with impunity24; Omar al-Bashir remains in power in Sudan and militias connected to Khartoum
continue their streak of violence, this time in South Kordofan25; and Cote d’Ivoire once more had to
witness grave human rights abuses after the ICC intervention.26
But what is the reason behind this apparent failure of international prosecution threats to put an end to
genocides, crimes against humanity and other serious human rights abuses taking place? A number of
scholars have tried to provide an answer to this question. Often, they stress the limited credibility of the
threat being issued by the courts. Kenneth Rodman argues that, because the ICC does not have its own
police force, it is wholly reliant on the cooperation of state parties to apprehend its suspects. However,
because states like Sudan – and also, recently, Kenya – are not willing to cooperate in arresting the ICCindictees, and third actors are usually unwilling to commit forces to the apprehension of suspects, this
often means that ICC-indictees have a low chance of being apprehended if they have not first been
significantly weakened in other ways.27 David Wippman has likened this small chance of actually being
sentenced for committing mass atrocities to “losing the war crimes prosecution lottery”.28 Sadly,
Akhavan’s remark from 2009 that “the balance is still firmly on the side of political expedience and
submission to power rather than to justice”, still seems to ring true today.29 Thus, these scholars stress
Daniel Wagner and Giorgio Cafiero, ‘The Central African Republic’s Coming Genocide’, The Huffington
Post, (3 December 2013), available online at: http://www.huffingtonpost.com/daniel-wagner/the-central-africanrepub_2_b_4377563.html (9 December 2013).
23
Akhavan, ‘A Disincentive to Peace?’.
24
This is discussed in detail in the third chapter.
25
James Verini, ‘The Battle for South Kordofan’, Foreign Policy, (22 January 2013), available online at:
http://www.foreignpolicy.com/articles/2013/01/22/the_battle_for_south_kordofan_sudan (6 December 2013).
26
Human Rights Watch, A Long Way from Reconciliation, (19 November 2012), available online at:
http://www.hrw.org/reports/2012/11/18/long-way-reconciliation (6 December 2013); Office of the High
Commissioner for Human Rights, ‘Côte d’Ivoire: UN call for investigations into serious human rights abuses by
traditional hunters’, (6 December 2013), available online at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14071&LangID=E (9 December
2013).
27
See: Rodman, ‘Darfur’.
28
David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’, Fordham International Law
Journal 23 (1999) 473-488, 477.
29
Akhavan, ‘Disincentive to Peace?’, 652.
22
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that, as the threat of prosecution is not deemed credible, it is not able to significantly alter the decision
making process of war criminals.
The lack of credibility of the sanction threat, is also used as an important explanation in
criminological comments on the potential deterrent effect of legal sanction threats. The criminological
discipline of perceptual deterrence theory is an important source of knowledge for the way that sanction
threats are perceived by (potential) offenders. The articles that have applied criminological viewpoints
to the workings of deterrence by international tribunals cite the extremely low certainty – seen by
deterrence theorists as the most important factor in deterring crimes – of international prosecution as
one of the main reasons for the fact that international tribunals do not seem to be able to effectively deter
mass atrocities.30
Others have questioned the effectiveness of international tribunals at reaching the grassroots.
An example of this is the ‘awareness problem’, which means that not every single rebel commander or
state leader is aware of the fact that he risks international prosecution when he commits crimes that fall
under the jurisdiction of an international tribunal. This awareness problem is linked to the challenge of
outreach. Janine Natalya Clark notes the fact that the ICTY did not have an Outreach section for the first
five years, leaving the grassroots to be influenced by nationalist leaders that consistently portrayed the
ICTY as illegitimate.31 Therefore, as the targets of prosecution were still receiving support from their
constituents, and they did not have to be afraid of being arrested within their own zones of influence,
they did not have any reason to stop the violence. Dawn Rothe and Victoria Collins note here that the
perceived legitimacy of international criminal tribunals seems to be linked to the certainty of the legal
sanction threat issued by these tribunals. In general, tribunals that are perceived to be illegitimate will
have a hard time at securing support for the execution of their arrest warrants.32
Furthermore, Kenneth Rodman and David Wippman have noted the fact that, for many leaders
of groups that commit crimes against humanity and/or genocide, these crimes are a way to stay in
power.33 They need them to maintain support for their (political and military) leadership. This often
means that, when they are threatened by international prosecution, the alternatives are either to surrender
and be sentenced, or to continue the violence through which they secure their hold on power. It is not
surprising that most leaders choose the latter.
Some have also questioned the assumption that those who commit atrocities are capable of
considering the consequences of their actions. Mark A. Drumbl asks if “genocidal fanatics,
industrialized into well-oiled machineries of death, make cost-benefit analyses prior to beginning
Mullins and Rothe, ‘The Ability’; Ku and Nzelibe, ‘Deter or Exacerbate’; Dawn L. Rothe and Victoria E.
Collins, ‘The International Criminal Court: A Pipe Dream to End Impunity?’, International Criminal Law
Review 13:1 (2013) 191-209.
31
Janine Natalya Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’, International
Criminal Law Review 9:1 (2009) 99-116, 100-106.
32
Rothe and Collins, ‘Pipe Dream’,
33
Rodman, ‘Darfur’, 530-532; Wippman, ‘Atrocities, Deterrence’, 479.
30
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work”.34 The repulsiveness of some stories of grave human rights abuses indeed seems to defy rational
analysis. How can we possibly explain or understand “torturers who insert a tube into a man’s anus or a
woman’s vagina and seal into it a rat, which then tries to get out by gnawing its way through the victim’s
body?”35 What kind of well-thinking individual would cut off ears, lips, noses, and kill babies by
throwing them against trees, like Joseph Kony’s Lord’s Resistance Army has been doing? Surely, these
men must be suffering from some sort of psychological defect, or be swept up by primordial hatred. Yet,
many stress the fact that the perpetrators of such crimes are in fact not crazy. Rather, they are ‘ordinary
men’, who are not necessarily swept up by some century-old, inescapable hatred.36 Moreover, when
looking at the enormous amount of people involved in genocides such as those in Rwanda, Yugoslavia,
and Nazi Germany, James Waller comes to the conclusion that it is statistically and diagnostically
impossible that they all suffered from some sort of psychological deficiency that explains their acts.37
Rarely though, do scholars give an actor-oriented explanation, founded in psychological and
criminological research, for the aforementioned problem. This contribution will do exactly that. With a
multidisciplinary approach, it will try and answer the question of why the legal sanction threat of
international criminal prosecution seems unable to deter (future) perpetrators from committing
atrocities. To do so, it will perform two case studies, one of former Serbian president Slobodan
Milosevic, who was threatened by prosecution by the ICTY, and one of Joseph Kony, the leader of the
Lord’s Resistance Army, who has been operating in Northern Uganda, South Sudan, the Democratic
Republic of Congo and the Central African Republic and has come under the jurisdiction of the ICC.
These case studies will try to explain how the threat of international prosecution was perceived by
Milosevic and Kony and how they reacted to this threat.
There are various reason for the choice of these case studies. First, both Milosevic and Kony
have been held responsible for grave human rights abuses and atrocities such as crimes against humanity,
war crimes and genocide and were or are emblematic for the institution by which they were – or are –
prosecuted. The case against Kony was the first for the ICC and an important part of its institutional
credibility was attached to it. The case against Milosevic was also seen as one of the most important
cases for the ICTY. Milosevic is often held most responsible for the violence that ravaged the former
Yugoslavia in the 1990s and it was seen as indispensable to hold him accountable. Second, Milosevic
and Kony were chosen to achieve a level of representativeness. According to Alex Alvarez, the two
34
Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press,
2007) 171.
35
Ervin Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence (Cambridge: Cambridge
University Press, 1989) xiii.
36
Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’,
The American Journal of International Law 95:1 (2001) 7-31, 7; Staub, The Roots of Evil, xiii-xiv.
37
James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (Oxford: Oxford
University Press, 2002) 69.
13
groups who are most often responsible for mass atrocities are government agents and militia groups.38
Milosevic can be seen as a representative of the first group: he was a government leader who once
walked among the Western elites and ordered crimes from his desk. Kony, on the other hand, is a
representative of the second group: he is a militia leader who operates primarily in the bush and is more
directly involved in the crimes he is responsible for. Thus, by studying the effects of international
prosecution on a member of each group, a clearer image can be obtained of the effect of deterrence by
international legal prosecution.
Although scholars such as Emile Durkheim and Max Weber have argued that actors are a
product of their society and they only play irrelevant roles compared to the larger, structural forces that
shape history, in this piece it is assumed that actors in fact do shape history. This is because it is often
the acts of individuals that drive world politics. We cannot deny the enormous impact leaders such as
Slobodan Milosevic have had for the history of their countries. Nor can we underestimate the impact
that Joseph Kony’s decisions have had on the inhabitants of Northern Uganda. Still, it is of course true
that leaders act in their historical, economic, cultural, and political context and that this context plays a
role in the way they make their decisions. This contribution therefore sees national decision making as
being shaped by the “leader in context.”39 In the case studies the context in which Milosevic and Kony
committed their crimes will therefore be thoroughly explored. The view described here is congruent
with the findings of political psychology. One sub-discipline of this research field is especially useful
for the present contribution, namely the discipline of political profiling which is used by governments
worldwide to assess the potential reactions their counterparts might take.40
In the cases of Joseph Kony and Slobodan Milosevic, considerable power was centered in one
person. The most important decisions were being made by these leaders. Although Milosevic was
‘democratically’ elected as Serbia’s president in 1991, he made sure to aggregate as much power as
possible in the hands of political allies. Through this autocratic leadership he made sure that it would be
him who would be making the most important decisions. Joseph Kony was the undisputed leader of the
Lord’s Resistance Army. His spiritual authority was enormous, which made his rebels follow him
everywhere, even in death. Both Milosevic and Kony, then, had considerable power to make decisions
on their own. Therefore, their personalities and their decision making processes had a significant
influence on the course of events as the Yugoslav wars and the LRA’s insurgency unfolded. And hence,
the question of why the threat of international prosecution rarely stops mass atrocities from taking place,
can be meaningfully answered by studying the decision making processes of these two men.
Alex Alvarez, ‘Militias and genocide’, War Crimes, Genocide, & Crimes against Humanity 2 (2006)
1-33, 3-4.
39
Jerrold M. Post, Leaders and their Followers in a Dangerous World: The Psychology of Political Behavior
(Ithaca: Cornell University Press, 2004) 13.
40
Ibid., xv-xvii.
38
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Research question and structure
As has been outlined above, this contribution will try to answer the question of why international
criminal prosecution seems to be unable to deter (potential) offenders from committing mass atrocities.
This question is answered by conducting two case studies, which try to answer it by studying the
perception that Joseph Kony and Slobodan Milosevic had of the legal sanction threat against them, and
how, based on this perception, they responded to it. First, however, an analytical framework will be built
on the basis of psychological, criminological, and transitional justice literature. This framework will
outline these disciplines’ relevant theories that can be applied to the case studies. Core concepts will be
described that can help us to better understand the actions of war criminals threatened by international
prosecution. Then, in the second chapter the focus will be on Slobodan Milosevic. A short overview of
the conflict in the former Yugoslavia and Milosevic’s role in it will be given. Thereafter it will analyze
Milosevic ‘the man’ and his relationship to the ICTY. The same will be done for Kony in the third
chapter. The present contribution will close with some concluding remarks and a discussion. Thus, by
analyzing the reactions of Milosevic and Kony through the analytical framework built in the first
chapter, this piece will contribute to a better understanding of the role that threats of international
prosecution, be it through the ICC or through future ad hoc courts, can play in preventing mass atrocities
from taking place around the world.
Methodology
As this study takes an actor-oriented approach and is interested in the interaction of criminals with
judicial institutions, it will use findings from multiple scholarly fields, with an emphasis on criminology,
(political) psychology and transitional justice. Also, insights will be used from criminal profiling,
genocide studies, political science, and sociology. It is important to stress that, to understand the way
that Milosevic and Kony reacted to the threat of international prosecution, it will be their points of view
that are relevant for this study. Therefore, it is essential to analyze in-depth the factors that were involved
in the decision making process of these state leaders. Or, to quote political psychologist Jerrold M. Post:
“In order to effectively counter leaders such as […] Slobodan Milosevic as they promote deadly conflict,
clear actor specific models of their psychology and decision making are an absolute requisite.”41 As
such, it is what Post has termed the fifth, “personality-driven level [of analysis]”42 – referring to the four
levels of national decision making which have been identified by Graham Allison in his classic Essence
of Decision43 - which will be the focus of this study.
Even though it seems well placed to study the subject, criminology has long ignored
international crimes. Roelof Haveman and Alette Smeulers have gone so far as to call this unwillingness
41
Post, Leaders and their Followers, 261.
Ibid., 16.
43
The four levels being: (1) The bureaucratic level, (2) the policy level, (3) the group level, and (4) the
individual level. See: Graham T. Allison Graham, Essence of Decision: Explaining the Cuban Missile Crisis
(Boston 1971).
42
15
to study international crimes “a state of denial”.44 Yet, there has been a recent upsurge in criminological
interest for the study of international crimes. An April 2007 conference in Maastricht, which called for
more attention for the subject, has resulted in a large variety of research programs, education
opportunities, and publications.45 The resulting discipline, called supranational criminology, is of high
use to this study and will be used extensively. Considerable use will also be made of the criminological
discipline of deterrence theory, which originates in the work of the Enlightenment philosophers Cesare
Beccaria and Jeremy Bentham. Although this theory has been constructed for domestic use, it is the
author´s contention that this theory’s core concepts, which will be further explored in the first chapter,
are also applicable to the international context.
Of course, there are limitations to this study. It is very hard to conclusively present the way that
Joseph Kony and Slobodan Milosevic perceived the world around them or to describe their personalities
beyond reasonable doubt. This is especially true since one of them has died and the other is hiding in
the bush, making any serious clinical observation almost impossible. We cannot crawl into their heads.
Yet, this does not mean that it is entirely impossible to understand these men. We can make inferences
from their behavior which are thoroughly founded in psychological and criminological knowledge. This
is exactly what will be done in this piece. As a final caveat, it must be noted that I am not a psychologist
or criminologist. I am a historian by education. Yet, I have thoroughly studied a large amount of
psychological and criminological research and I hope to have properly understood the various
psychological and criminological theories which are presented in this contribution.
Roelof Haveman and Alette Smeulers, ‘Criminology in a State of Denial – Towards a Criminology of
International Crimes: Supranational Criminology’, in Alette Smeulers and Roelof Haveman (eds.),
Supranational Criminology: Towards a Criminology of International Crimes (Berlin: Springer, 2008) 23-26, 4.
45
An overview of all this work can be seen on: http://www.supranationalcriminology.org/. See also: David O.
Friedrichs, ‘Towards a Criminology of International Crimes: Producing a Conceptual and Contextual
Framework’, in: Alette Smeulers and Roelof Haveman (eds.), Supranational Criminology: Towards a
Criminology of International Crimes (Springer, Berlin, 2008) 29-49, 29-30.
44
16
Chapter 1: Analytical Framework
The analytical framework presented here is meant to assess the reactions of Slobodan Milosevic and
Joseph Kony to the threats of international prosecution that were issued by respectively the ICTY and
the ICC. As it is mainly concerned with human reactions in criminal situations, this framework has been
built from relevant psychological and criminological research. Although, because of space limits, the
evidence has been picked somewhat selectively to fit the case studies following in the next chapters, it
should also be possible to use this analytical framework to analyze similar situations in the past and in
the future, such as the way in which Bashir al-Assad reacts to the potential referral of the Syrian situation
to the ICC.
To accurately understand the personalities and motivations of Milosevic and Kony, this chapter
will first describe some general notions about human nature. Are humans by and large rational actors?
What do people really want? How should we define and how should we accurately assess personality
and what is the impact of personality? After having answered these questions, the focus will be on the
factors that are important for the relation between the court that is issuing a threat, and the individual
being threatened. This includes factors such as legitimacy, deterrence, and extralegal sanction threats.
§1.1 Understanding the Man
As has been noted, if the actions of Slobodan Milosevic and Joseph Kony are to be accurately
understood, it is first necessary to give a description of some important notions on human nature in
general. This description will focus on three important factors, which are meant to answer three equally
important questions: (1) How does he make his decisions?; (2) What motivates him?; and (3) How can
we accurately assess his personality?
§1.1.1 Rationality
An important question that needs to be answered in this chapter is: How did the organizers of mass
killings make the decision to commit their crimes? Were they “raving mad monsters” – to use a
description once ascribed to Muammar Gaddafi?1 Were they ideological fanatics so caught up in their
own world that they lost connection with reality, not able to consider any adverse consequences they
might have to face for the committal of such serious crimes? Or were they coolly calculating,
manipulative and completely rational cynics who abused nationalist and ethnic sentiments to satisfy
1
Andrew Roberts, ‘Raving Mad Monster’, Newsweek 158:10 (2011) 41.
17
their lust for power? Although, of course, there are some war criminals who fall in either extreme
category, for most of them the answer probably is: a little bit of all of the above.2
It is significant to note, however, that many international commentators, analysts, and diplomats,
as well as proponents of the deterrent effect of international prosecution threats, assume that the proper
typology of the men they are dealing with, would be to see them as rational actors. This might have two
different reasons. First, the idea that (almost) all statesmen or rebel leaders are by and large rational
actors, might be a reflection of their view on human nature in general. Second, this preference might
have to do with the fact that rational actors are a better target for policies which are meant to direct their
behavior in the desired direction. This section will deal with the first reason. The second will be dealt
with further below, in §1.1.2.
The assumption that most humans are by and large rational actors has its scientific foundation
in rational choice theory. Rational choice theory as a scientific discipline has its roots in neoclassical
economics.3 The neoclassical economic view on rationality holds that when a person makes a choice, it
is based on a conscious, objective consideration and weighing of all the relevant costs (pains) and
benefits (pleasures).4 This consideration results in a decision that is both hedonic and utilitarian. More
specifically, in this view, a particular choice is only made when its benefits outweigh its costs. 5 What
the exact contents of the consideration are is not necessarily relevant for a particular decision to be
considered rational. Rather, it is the consistency and logicality of the consideration, the conscious and
objective weighing of costs and benefits, which are most important. As long as the decision making
process adheres to basic rules of logic and probability theory and it remains uninfluenced by immaterial
factors like emotions or mode of presentation, it can be seen as rational. As such, it is the consistency,
and not the substance of the decision making process that matters.6
In Western societies the assumption that most – if not all – humans are rational is quite
widespread. It is often seen as one of the things setting us apart from other animals. It has “come to
constitute perhaps the most common and pivotal assumption underlying theoretical accounts of human
behavior in various disciplines”.7 Rational choice theory has also spread into most social sciences,
especially into international relations theories. The theory of Realism, in particular, has a strongly held
view of man as a primarily self-serving agent, constantly calculating his way forward by choosing the
Alette Smeulers, ‘Perpetrators of International Crimes: Towards a Typology’, in: Alette Smeulers and Roelof
Haveman (eds.), Supranational Criminology: Towards a Criminology of International Crimes (Antwerp:
Intersentia, 2008) 233-265.
3
J. Robert Lilly, Francis T. Cullen, and Richard A. Ball, Criminological Theory: Context and Consequences (5th
Edition; Thousand Oaks: Sage Publications, 2011) 20-22.
4
The view that humans are mostly occupied with the acquirement of pleasure is further discussed in §1.1.2
below.
5
Anna Bonanno, ‘The Economic Analysis of Offender’s Choice: Old and New Insights’, Rivista Internazionale
di Scienze Economiche e Commerciali 53:2 (2006) 193-224, 196-198.
6
Eldar Shafir and Robyn A. LeBoeuf, ‘Rationality’, Annual Review of Psychology 53 (2002) 491-517, 492-493.
7
Ibid., 492.
2
18
path that maximizes gains and minimizes losses.8 The assumption that humans are rational actors is also
an important assumption of proponents of the deterrent power of legal sanctions, which will be further
discussed in §1.2.1. Rational choice theory has as its main benefit that it offers a conceptual framework
for human decision making that is easily operational.9 As such, it makes it easier to understand the
decisions people make and devise policies that should be able to change these decisions. Yet, at the same
time, a “widely held skepticism” remains as to rational choice theory’s accuracy and
comprehensiveness. 10 This skepticism is fed, almost to obesity, by social psychological research into
human rationality which has taken place in the past forty years, which has produced a long list of ways
in which judgments and decisions are both flawed and biased.11 The most important factors that are
severely hampering our judgment and decision making capabilities are computational difficulties,
cognitive biases, emotions, and individual determinants of behavior. These factors will be discussed
below.
1. Computational difficulties
First of all, the proponents of rational choice theory assume that the human decision maker is able to
coolly assess all available options, carefully weigh their pros and cons and, taking heed of their
probability, arrive at the best option available. However, to objectively and accurately do so would
require the decision maker to “think like Albert Einstein, store as much memory as IBM’s Big Blue, and
exercise the willpower of Mahatma Ghandi”.12 Most people evidently do not fit these requirements. As
Richard Thaler and Cass Sunstein, two prominent behavioral economists, note: “Real people have
trouble with long division if they don’t have a calculator, sometimes forget their spouse’s birthday, and
have a hangover on New Year’s Day. They are not homo economicus; they are homo sapiens.”13 As
such, real people are limited in their computational capabilities. We usually do not have the time,
attention or memory to properly consider all the available options when we have to make a choice.14 If
we cannot objectively weigh all potential alternatives, nor have the time for the process itself, then
decisions made in this way would not fulfill the normative criteria that, according to rational choice
theorists, make a decision making process rational. Computational difficulties are therefore an important
stumbling block for the achievement of ideal rationality.
These computational difficulties are more pronounced in situations of uncertainty and crisis. Leaders
often have to make decisions in exactly such circumstances. As Henry Kissinger, former Minister of
8
Robert Jackson and Georg Sørensen, Introduction to International Relations: Theories & Approaches (4th
Edition; Oxford: Oxford University Press, 2010) 59-92.
9
Frank Kalter and Clemens Kroneberg, ‘Rational Choice Theory and Empirical Research: Methodological and
Theoretical Contributions in Europe’, Annual Review of Sociology 38 (2012) 73-92, 86.
10
Kalter and Kroneberg, ‘Rational Choice Theory’, 74.
11
Richard H. Thaler and Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness
(New Haven: Yale University Press, 2008) 7-8.
12
Ibid., 6.
13
Ibid., 6-7.
14
Shafir and LeBoeuf, ‘Rationality’, 492-493.
19
State of the United States of America, has stated: “Historians rarely do justice to the psychological stress
on a policy-maker.”15 This kind of stress can cloud the judgment of these leaders, because it makes it
harder to think straight and keep a cool head. Errors in perception and judgment are more prone to occur
when the decision maker is under crisis-induced stress.16 Moreover, in crisis situations the amount of
time that can be allocated towards the decision making process is limited, because such situations
‘demand action’ and therefore the decisions often need to be made quickly, intensifying the influence
of more simple associative processes and personality characteristics.17 All of this adds to the
computational difficulties that limit the full rationality of such decision making processes. As such,
when decisions need to be made under stress, as is often the case in crisis situations, it is harder to make
decisions in a rational way.
2. Cognitive biases
A second, and more important limitation to qualifying human decision making as rational, is the
existence of cognitive biases, or what social psychologists call ‘heuristics’. In general, cognition is “the
collection of mental processes and activities used in perceiving, remembering, thinking, and
understanding, as well as the act of using those processes [italics in original].”18 In an ideal rational
process, the acquirement of information would proceed in a purely objective manner. If the best decision
is to be made, then all relevant information must be obtained, this information must be processed in a
cool and rational fashion and a subsequent calculation must result in a choice that leads to the best path.
However, this does not seem to happen. Social psychological research has long demonstrated that human
decision making is systematically biased by the methods employed when making choices.19 These
cognitive biases are a much more fundamental problem for the rational choice theories than the
computational difficulties that humans encounter. At its core, it means that “human cognition is
incapable of reaching a rational ideal, even under perfect circumstances”.20 This is because the human
brain is not “designed to weigh all information in a coolly rational fashion.”21 Carefully considering
each and every choice we have to make would take far too much energy and time, which would
significantly delay our day-to-day business.22
15
Henry Kissinger, White House Years (New York: Little, Brown and Company, 1979) 483. Thanks to Jorne de
Bruin for suggesting this quote.
16
Jerrold M. Post, Leaders and their Followers in a Dangerous World: The Psychology of Political Behavior
(Ithaca: Cornell University Press, 2004) 100. For a further exploration of this subject, see: Ibid., 100-122.
17
Ibid., 20-21. See also the conclusion of §1.1.1 for the more simple associative processes and §1.1.3 for more
on how personality influences behavior.
18
Mark H. Ashcraft and Gabriel A. Radvansky, Cognition (5th Edition; Upper Saddle River: Pearson, 2010) 9.
19
Lilly et al., Criminological Theory, 345; Thaler and Sunstein, Nudge, 7-8.
20
Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts:
Implications for the Success of Transitional Justice Mechanisms’, Vanderbilt Journal of Transnational Law 45:2
(2012) 405-476, 419.
21
Lilly et al., Criminological Theory, 345.
22
Shafir and LeBoeuf, ‘Rationality’, 499-500.
20
This is why the human brain employs mental shortcuts, rules of thumb, or in psychological
terms, heuristics. These heuristics allow for a more swift decision making process, which requires less
effort and gives a positive cognitive feeling.23 An example of this is the ‘availability heuristic’. The
definition of this heuristic is that information that is more easily retrievable has a greater impact on our
decision making than information that is harder to obtain. The probability of an event is assessed by the
ease with which occurrences of it can be brought to mind.24 For example, after the terrorist attacks of
9/11, in which hijackers flew commercial airplanes into the Twin Towers and the Pentagon, many
Americans decided to take a car to reach their destination. Flying was deemed to be unsafe, even though
the chance of having an accident is far higher in car traffic than in air traffic.25 The catastrophic events
of 9/11, being on the top of these Americans’ minds, in this way clearly biased their decision making,
since objectively it would have still been safer to fly than to drive.
Another example of a cognitive bias is the confirmation bias, which refers to the human
tendency to systematically select, interpret, and remember information that confirms their preexisting
beliefs, denying or ignoring information that does not.26 An example of this confirmation bias is given
by Stuart Ford, who uses it to explain why the International Criminal Tribunal for the former Yugoslavia
(ICTY) was perceived in such a negative way by much of the Serbian population, even after the ICTY
started a meaningful outreach campaign. In Ford’s view, as the Serbian population had a strong,
preexisting negative opinion about the ICTY, the information that became available by the ICTY’s
outreach efforts was consistently ignored or interpreted in such a way that it confirmed the Serbs’
negative view about the tribunal. The Serbian population selected only those pieces of information that
did not conflict with their preexisting beliefs. In this way, because of the confirmation bias, the ICTY’s
outreach efforts, which tried to counter these negative narratives, had only limited effect.27
A third phenomenon that stands in the way of an objective assessment of the costs and benefits
of any given choice, is what is known to psychologists as ‘loss aversion’.28 This means that a loss of an
object is considered more aversive than the gain of the same object is considered attractive.29 Therefore
a choice can be framed to influence the decision that is made. A different presentation of events, where
something is presented as a loss instead of a gain, can thus significantly alter the choice being made,
Rainer Greifeneder, Herbert Bless, and Michel Tuan Pham, ‘When Do People Rely on Affective and
Cognitive Feelings in Judgment?: A Review’, Personality and Social Psychological Review 15:2 (2010) 107141, 109-110.
24
Amos Tversky and Daniel Kahneman, ‘Availability: A Heuristic for Judging Frequency and Probability’,
Cognitive Psychology 5:2 (1973) 207-232.
25
Thanks to Annelein Koot for the example.
26
Raymond S. Nickerson, ‘Confirmation Bias: A Ubiquitous Phenomenon in Many Guises’, Review of General
Psychology 2:2 (1998) 175-220.
27
Ford, ‘Social Psychology Model’, 433-439.
28
Amos Tversky and Daniel Kahneman, ‘Loss Aversion in Riskless Choice: A Reference Dependent Model’,
Quarterly Journal of Economics 106:4 (1991) 1039-1061.
29
Shafir and LeBoeuf, ‘Rationality’, 496.
23
21
even though the objective situation is the same.30 Related to this is the ‘endowment effect’, “wherein the
mere possession of a good can lead to a higher valuation of it than if it were not in one’s possession […]
[and] the disadvantages of departing from it loom larger than the advantages of the alternatives”, which
leads to “a general reluctance to […] depart from the status quo”.31 Loss aversion and the endowment
effect are phenomena that seem to occur frequently in politics. As attractive it is to acquire power, power
is also often hard to give away after it has been acquired. After a significant social status is achieved,
the risk of losing it can weigh heavily on a person’s mind. This may result in a significant effort to
maintain it. There are plenty examples of genocidaires who linked their social status to the crimes that
they ordered. For them, these crimes are a way to maintain their hold on power. As such, stopping these
crimes because of a threat of international criminal prosecution might result in a loss of power for them
and therefore looks like a disadvantageous option. The endowment effect can thus give a behavioral
economical perspective on history’s many examples of political leaders doing everything they can to
maintain their hold on power.
3. Emotions
The third problem with (neoclassical) rational choice theory is that it assumes that decisions are made
in an objective, emotionally ‘cool’ manner. This implies that factors such as mood, emotional state and
feelings should not affect the decision making process. Therefore, in this view, a person would make
the same decision in a happy mood as in a sad mood. However, once again, social psychological research
has shown that this view is incorrect.32 There are many ways in which such transient moods affect choice
and judgment. For example, a positive mood leads to a higher perceived frequency of desirable events.33
This is often seen in day-to-day life. When a person is in a very happy mood, he is ‘away with the
fairies’, unrealistically positive in his expectations. This works the other way around when someone is
in a very negative mood. An extreme example of transient moods affecting behavior is bipolar disorder.
People who suffer from bipolar disorder, formerly known as manic depressive disorder, are frequently
experiencing extreme manifestations of both positive moods – manic episodes, in which they think that
everything is great, that they can do everything they want, that no harm can come to them etc., often
with disastrous effects – and negative moods – depressive episodes, in which they can become suicidal,
cannot concentrate, do not want to eat etc.34 Our mood, being happy or sad, therefore clearly affects our
decision making process. This contradicts the tenets of rationality, which subsumes that emotions do not
Amos Tversky and Daniel Kahneman, ‘Rational Choice and the Framing of Decisions’, The Journal of
Business 59:4 (1986) 251-278.
31
Shafir and LeBoeuf, ‘Rationality’, 496. See also Daniel Kahneman, Jack L. Knetsch and Richard H. Thaler,
‘Experimental Tests of the Endowment Effect and the Coase Theorem’, Journal of Political Economy 98:6
(1990) 1325-1348.
32
Greifeneder et al., ‘Affective and Cognitive Feelings’, 107.
33
Shafir and LeBoeuf, ‘Rationality’, 498.
34
Benjamin J. Sadock and Virginia A. Sadock, Kaplan & Sadock’s Synopsis of Psychiatry (10th Edition;
Philadelphia: Lippincott Williams & Wilkins, 2007) 527-562.
30
22
– or should not – play a role in the making of decisions, because that would mean that the decision
making process is not always the same for the same person.35
Besides these transient moods, it has also been shown that visceral factors – “the cravings
associated with drug addiction, drive states (e.g. hunger, thirst, and sexual desire), moods and emotions,
and physical pain”36 – can have a direct impact on behavior. They change the perceptions of costs and
benefits, of risks and opportunities, and subsequently the perception of what behavior is appropriate.37
George Loewenstein describes the process in which strong visceral factors, such as a strong sexual
desire, extreme anger, or physical pain, can give the experiencer the feeling of being ‘out of control’. It
can lead them to act in a direct contradiction to their self-interest. Even when they are perfectly aware
of the irrationality of their desire, the desire is stronger than the ‘rational’ mind, and the person has to
act on it.38 Visceral states impact behavior in three ways. First, they narrow the person’s attention to
those things that are related to the specific visceral state. Second, visceral states focus the person’s mind
on short-term decisions to resolve the state quickly. Third, the attention of the person experiencing the
visceral state moves primarily inward, making it much harder to show concern for others when
deliberating an action.39 These extreme emotional states therefore significantly shortcut rational
deliberation, focusing the person’s entire attention towards the satisfaction of his own needs. Sexual
arousal, for example, has been shown to have a significant effect on the willingness of a potential
offender to engage in sexual coercion.40 When war criminals make decisions, then, emotions or moods
such as anger and fear might impact their decision making process. Slobodan Milosevic was known to
throw tantrums against the West and, although to some extent these might have been mere theater, it
does not seem unreasonable to assume that at times he was genuinely angry, feeling victimized and
unrecognized. Such emotions most definitely would have had a large impact on his behavior. This will
be further explored in the case studies below.
Another emotional factor that has been shown to impact judgment, are affective feelings.
Affective feelings towards a given subject impact a person’s behavior towards it. As one meta-review
states, “the list of judgments on which affective feelings have been shown to have an impact appears to
be endless”.41 This has led some scholars to suggest the existence of an ‘affect heuristic’.42 It is often
heard that someone does something because it “feels right” or does not do something because it does
Shafir and LeBoeuf, ‘Rationality’, 498-499.
George Loewenstein, ‘Out of Control: Visceral Influences on Behavior’, Organizational Behavior and Human
Decision Processes 65:3 (1996) 272-292, 272-273.
37
Ibid., 273.
38
Ibid., 273-274.
39
Jeffrey A. Bouffard, ‘The Influence of Emotion on Rational Decision Making in Sexual Aggression’, Journal
of Criminal Justice 30:2 (2002) 121-134, 122. He summarizes Loewenstein, ‘Out of Control’, 274-276.
40
Paradoxically, sexual arousal seems to increase the awareness of negative consequences that sexual coercion
might have. For more on this, see: George Loewenstein, Daniel Nagin and Raymond Paternoster, ‘The Effect of
Sexual Arousal on Expectations of Sexual Forcefulness’, Journal of Research in Crime and Delinquency 34:4
(1997) 443-473. For a further exploration of this paradox, see: Bouffard, ‘The Influence of Emotion’, 122-123.
41
Greifeneder et al., ‘Affective and Cognitive Feelings’, 109.
42
Shafir and LeBoeuf, ‘Rationality’, 499.
35
36
23
not “feel right.” Such feelings are especially influential when they are salient in someone’s mind.43 The
reliance on feelings in forming our judgment goes further than this, however. We form judgments about
objects, often unconsciously, on the basis of how they make us feel.44 It has been shown, for example,
that political candidates are often chosen for the way that people “feel” about them – not just about their
political statements but about the person him- or herself.45 This is often a significant reservoir of support
for charismatic leaders. The fact that they are chosen is less a consequence of their political opinions,
than it is a consequence of the way that they make people feel.46 The reason why this is problematic for
the assumptions of rational choice theory, is that these feelings are not quantifiable, objective, or
‘rational’ sources of information. They are often extremely subjective. When a person makes a choice
in an intuitive way – because he “feels good” about it –, it rarely leads him to the outcome that is
objectively ‘best’ for him.47
4. Individual differences
A fourth counterargument against the view that humans are rational actors, is the persistence of
individual differences as determinants of behavior. These differences go further than the substance level
of judgment and decision making, which, as has been noted above, does not necessarily run counter to
rational choice theory. Individual differences also significantly affect the consistency level of people’s
decision making processes, which means that not everybody makes decisions in the same way. One clear
example of people who make decisions in a clearly irrational way are people with psychopathological
problems, like paranoid schizophrenia, clinical psychopathy, or psychotic illnesses. Although there are
some instances in history in which state or rebel leaders suffered from these mental difficulties – Joseph
Stalin was thought to suffer from or at least have characteristics of paranoid schizophrenia,48 Adolf
Hitler is often described as a psychopath49 - we can assume that most people who have made it to the
leadership position of a social group or state, have shown that they are able to think straight and are not
severely hampered in their decision making capabilities by some sort of debilitating mental disease.
Therefore people with mental illnesses could be put away as anomalies and we could still assume that
most of us are rational in the same way.
However, there are many other differences between individuals that have a large impact on the
way that decisions are made. They alter the perceptions of costs and benefits and dictate what choices
are seen as desirable. These individual differences therefore significantly affect the decision making
Greifeneder et al., ‘Affective and Cognitive Feelings’, 113.
Ibid., 129-130. Shafir and LeBoeuf, ‘Rationality’, 499.
45
Greifeneder et al., ‘Affective and Cognitive Feelings’, 111.
46
David P. Redlawsk, ‘Hot Cognition or Cool Consideration? Testing the Effects of Motivated Reasoning on
Political Decision Making’, Journal of Politics 64:4 (2002) 1021-1044, 1039-1041.
47
Shafir and LeBoeuf, ‘Rationality’, 499. However, for an argument that there is in fact nothing wrong with the
use of feelings as a guideline for action, see: Greifeneder et al., ‘Affective and Cognitive Feelings’, 130-132.
48
See, for example: Robert Service, Stalin: A Biography (Harvard: Harvard University Press, 2006).
49
See, for example: Ian Kershaw, Hitler: 1936-1945 (New York: W.W. Norton, 2000).
43
44
24
process and thus lead to different behavioral tendencies. An important example of the way that
individual differences impact our behavior, is the finding by criminologists that people differ in their
criminal propensity.50 There are certain individual traits and characteristics that are stable over time,
which have been shown to predict crime. One of these is what has been called self-control, a
psychological construct that, at its core, describes the extent to which individuals are present-oriented
(as opposed to future-oriented).51 Present-oriented individuals tend to overrate the gains that can be
gained in the here and now, while significantly underrating costs that lay in the future.52 Since most
crimes offer direct satisfaction, it has been suggested that individuals who score high on presentorientation, are more attracted to criminal options and therefore more criminally prone.53 Also,
according to Raymond Paternoster, since legal sanctions often follow only much later – if at all – the
criminal justice system is ineffective at deterring these individuals.54
Furthermore, decision making processes can be influenced by cultural imperatives, like the
prevalent attitudes towards risk taking.55 In some cultures, risk taking is discouraged – “better safe than
sorry” – while in others it is accepted and sometimes even encouraged, with the end justifying the means.
At the same time, differences between cultures in their attitudes towards impulsivity and emotionality
can have a large impact on decision making processes. While in some cultures it is not accepted to
“speak out of turn”, other cultures glorify the impulsive, intuitive response. Thoughtful, carefully
considered actions, are therefore not always the proper choice. Cultural attitudes like the ones named
above can significantly alter the way that the decision making process takes place, or sometimes even
shortcut rational considerations.
A last important individual difference that has a large impact on decision making is personality.
It has been shown that personality is a significant predictor of behavior. As it is so important, personality
is described in a separate section, §1.1.3.
Daniel S. Nagin and Raymond Paternoster, ‘Enduring Individual Differences and Rational Choice Theories of
Crime’, Law and Society Review 27:3 (1993) 467-496, 469-470.
51
Michael R. Gottfredson and Travis Hirschi, A General Theory of Crime (Stanford: Stanford University Press,
1990) 85-120.
52
Greg Pogarsky, ‘Deterrence and Decision Making: Research Questions and Theoretical Refinements’, in:
Marvin D. Krohn et al. (eds.), Handbook on Crime and Deviance (Berlin: Springer, 2009) 241-258, 243.
53
Nagin and Paternoster, ‘Enduring Individual Differences’, 471-473.
54
Raymond Paternoster, ‘How Much Do We Really Know About Criminal Deterrence?’, The Journal of
Criminal Law and Criminology 100:3 (2010) 765-823, 821. For a counterpoint, see: Greg Pogarsky, ‘Deterrence
and Individual Differences Among Convicted Offenders’, Journal of Quantitative Criminology 23:1 (2007) 5974.
55
Post, Leaders and Their Followers, x-xi. Foreword by Alexander L. George.
50
25
In conclusion
Having outlined four major limitations of rational choice theory – computational difficulties, cognitive
biases, emotions, and individual differences – it must be concluded that the idea that humans are rational
decision makers who consciously and carefully make decisions on the basis of hedonic cost-benefit
calculations is by and large incorrect. The evidence emanating from social psychological research,
which shows that humans are not simply self-serving, rational agents, is overwhelming. Although
rational choice theory offers a simplified conceptual framework for understanding human decision
making which is easily operational, in the face of such overwhelming evidence, it seems unreasonable
to hold on to the belief that the explanation which it offers is either comprehensive or accurate.
Rationality scholars, and especially its critics, have proposed multiple alternatives to rational
choice theory. One of these is the dual process model, which holds that there are two coexisting
processes of reasoning and judgment within the human brain. The first is a process of reasoning, “that
makes relatively automatic inferences and judgments through mainly associative means”,56 which would
be the process that we use in our day-to-day decisions and activities. The second process would be the
one that is used for more deliberate, important decisions, a process that “makes relatively effortful
inferences by following a set of explicitly normative rules”.57 This dual process model would explain
why most of us are able to rationalize many decisions, in fact sometimes do spend some time to calculate
the best decision, yet at the same time make many spontaneous, impulsive and unconscious decisions
which are not always in our best interests. However, even the second process of reasoning, the more
deliberate one, falls prey to the many limits on rationality which have been described above. It would
still suffer from cognitive biases in the collection of information, for example.
Because of the inherent flaws of human decision making, some scholars have suggested that we
should not see human decision making as the cost-benefit calculus that rational theory scholars propose.
Rather, we should see it as ‘bounded rationality’, or ‘instrumental rationality’.58 This view has two main
aspects. First, human behavior can be understood as purposive: we act to achieve goals. Second, humans
attempt to avoid outcomes that they perceive to be undesirable and strive to achieve outcomes that they
perceive to be desirable.59 In this way, human behavior certainly does respond to incentives and
disincentives, although in different manners and definitely not always in the way that we expect them
to. This more nuanced view on human rationality is much more plausible and is the one that will be
adopted in this study. It will be helpful in explaining why Slobodan Milosevic and Joseph Kony did not
respond to the threats of international prosecution in the way that the issuers of those threats expected
them to.
Shafir and LeBoeuf, ‘Rationality’, 500.
Ibid.
58
Kalter and Kroneberg, ‘Rational Choice Theory’, 86.
59
J. von H., Holtermann, ‘A “Slice of Cheese” – a Deterrence-Based Argument for the International Criminal
Court’, Human Rights Review 11:3 (2010) 289-315, 295; Pogarsky, ‘Decision and Decision Making’, 241.
56
57
26
§1.1.2 Motivation
Despite all the limitations on our judgment and decision making capabilities, it would be folly to say
that we are just doing something. We do things for a reason. What is it then that motivates us? Why do
we do what we do? What do people really want? As answering these questions is critical to adequately
explaining a person’s behavior,60 this section will explore how scientists have usually explained what
motivates human behavior. Multiple answers to the questions outlined above have been suggested. One
of the most influential ones is that people want to maximize pleasure and minimize pain, arguably “[t]he
most common answer historically”.61 There is little question that this hedonic explanation of human
behavior is very often an appropriate answer. The want of pleasure is sometimes even more important
than the need for survival. As motivation scholar E. Tory Higgins states, “[i]t has been known for over
half a century that animals will choose on the basis of hedonic experiences independent of any biological
need being satisfied”.62 However, a major problem with the ‘pleasure and pain’-explanation is that it is
often used for the motivation of simplified policies which are intended to influence human behavior.63
When maximizing pleasure and minimizing pain is really all that people want, then wielding what is
called the carrot and the stick should be effective in guiding someone’s behavior in the direction that is
desired. Simply by promising pleasure – the carrot – and/or threatening with pain – the stick – the
desirable behavior should be achieved. This policy of “wielding the carrot and the stick” is something
that is often seen in diplomacy. An example of this is the behavior of the Western world towards states
like Iran and North Korea. Both states are pulling in directions that are perceived to be undesirable by
the Western world, in particular by the United States. To influence their behavior, a wide range of
sanctions has been imposed. International prosecution is also at its core based on this idea. However,
this policy is quite often unsuccessful in achieving the outcome that is desired by the Western world.
In part, this is because this answer to the question of why people do what they do might be
oversimplified. The duality of ‘pleasure’ versus ‘pain’ leaves out options that lay in between as well as
goals that cannot be classified as either a ‘pleasure’ or a ‘pain’. Furthermore, in international relations,
the avoidance of pain might not be as important to some actors as it is to others. In the examples of
North Korea and Iran this pain only reaffirms the perceived hostility emanating from the West. As such,
it is a useful tool to reconfirm pre-existing feelings of victimization and isolation within the general
populace and therefore this ‘pain’ converts into a ‘pleasure’. Thus, the notion that humans are motivated
See: Daniel J. Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York:
Vintage, 1997) 19-22, who argues convincingly for the need to understand the motives of the perpetrators of
mass atrocities.
61
E. Tory Higgins, Beyond Pleasure and Pain: How Motivation Works (Oxford: Oxford University Press, 2011)
29.
62
Ibid., 29-30. Survival of course, is also a very important motivational force. People who are poor, can spend
whole days being occupied with the acquirement of sufficient nutrients. According to Abraham Maslow’s
‘hierarchy of needs’, the fulfillment of physiological needs is the most important. These need to be fulfilled
before human beings start wanting more complex things that are higher in his hierarchy. See: Abraham Maslow,
‘A Theory of Human Motivation’, Psychological Review 50:4 (1943) 370-396.
63
Higgins, Beyond Pleasure and Pain, 11-12.
60
27
by the maximization of pleasure and the minimization of pain does not seem to give a satisfactory answer
to this section’s questions.
Higgins offers a more convincing answer. His idea is that what people really want is to be
effective.64 Motivation, then, is “directing choices in order to be effective”.65 He identifies three forms
of effectiveness that are essential in his eyes. The first is ‘value effectiveness’, which he defines as
“being successful in having what’s desired”.66 Second, ‘truth effectiveness’ – which he sees as “being
successful in establishing what’s real”.67 Third and last, he identifies “control effectiveness” as an
important component of being effective which is desired by humans. Having control effectiveness means
“being successful in managing what happens”.68 According to Higgins, these three components, which
are especially strong when working together,69 are the main motivators of human action.
The visions described above are essentially meta-visions of human motivation. The idea that people
want to be successful in having what they desire, leaves much room to explain the differences between
the desires of certain individuals and how intensely they seek to acquire them. Much of this room can
be filled by values. Values are an important source of motivation. They are factors that are inherent to a
person and guide his actions. More specifically, they are “cognitive representations of desirable,
abstract, trans-situational goals that serve as guiding principles in people’s life”,70 or “an experience of
strength of motivational force”.71 We strive to obtain the things that we value, be it some sort of abstract
construct – power, recognition, and the like – or a rather concrete object, like food or money. As such,
the valuation of a specific goal leads to an experience of motivation to obtain it.
What is interesting to note, especially for the case studies, is that multiple experiments have
shown that a person values something higher, when he has to overcome an obstacle to obtain it. In
psychological terms: the opposition of an interfering force leads to higher strength of engagement with
the completion of the goal, which in turn makes the person assign a higher value to the goal.72 When a
person is highly committed to a goal, an intervention, such as a threat of prosecution, will only increase
his commitment. Thus, in such a situation, an intervention can be counterproductive. It must be noted,
however, that when enough opposition is encountered a goal will in most cases be dropped eventually.
There are instances, however, in which people refuse to give up a goal, even in the face of overwhelming
64
Ibid., 44.
Ibid., 42.
66
Ibid., 49-51.
67
Ibid., 51-52.
68
Ibid., 53-56.
69
Ibid., 4-5, 13-14.
70
Gian V. Caprara et al., ´Personality and Politics: Values, Traits, and Political Choice’, Political Psychology
27:1 (2006) 1-28, 3.
71
E. Tory Higgins, ‘Value from hedonic experience and engagement’, Psychological Review 113:3 (2006) 439–
460, 442.
72
Ibid., 444.
65
28
opposition.73 In the cases of Slobodan Milosevic and Joseph Kony, this kind of zealotry seems to have
played an important role in explaining their refusal to give in to international prosecution threats. This
will be further explored in the case studies below.
The fulfillment of ideological goals can also be an important motivator of action. An ideology
can be seen as an organized set of values. It gives meaning to the world by assigning value to some
things and not to others. It sets goals for its believers and as such guides their behavior in a certain
direction. Not all ‘believers’ are the same in their conviction, of course. Other motives often override
ideological imperatives. People can be hypocrites. However, it is important to note that psychologists
have found that, in general, people have the desire to act in accordance with their beliefs. When someone
acts in direct contradiction with their own self-identity, it “elicits an intense negative affect.”74 Thus,
although people may sometimes act in direct contradiction to the ideology they say they believe in, when
an ideology or some other set of values is an integrated part of a person’s self-identity, he will at least
try to act in consistency with it.75
Power in and of itself can also be an important goal and is often cited as the main reason for
rebel leaders and heads of state to commit crimes against humanity. Both Slobodan Milosevic and
Joseph Kony are often seen as men primarily motivated by power.76 They are seen as leaders who exploit
nationalist and racist sentiments to gain support and therefore many commentators doubt their
commitment to the ideology that they say they believe in. But even for those who do bit fully believe in
an ideology, the constant dissemination of propaganda advocating the ideology’s viewpoints irreversibly
has an effect on those that are subjected to it. Even though the leaders of a group are the ones
disseminating the propaganda, they will also be affected by the group ideology “and find it increasingly
difficult to move in new directions.”77As such, it will be important to examine the ideology propagated
by Milosevic and Kony. This will be done in the case studies below.
Related to values are moral norms. Moral norms are beliefs about what is right and what is not.
Differing from person to person, they can sometimes be externally given, emanating from a religion, a
social group or a state. When they are internalized, moral norms can influence behavior in a significant
way, forming restraints or creating motives. For example, moral norms play an important role in crime
causation. It has been shown that a person with strongly internalized norms against committing a certain
crime, does not even consider instrumental incentives for it.78
73
Ibid., 456-457.
Sam A. Hardy and Gustavo Carlo, ‘Identity as a Source of Moral Motivation’, Human Development 48:4
(2005) 232-256, 236.
75
Caprara et al., ‘Personality and Politics’, 3. For more on the importance of this ‘fit’, see: Higgins, Beyond
Pleasure and Pain, 9.
76
Smeulers, ‘Typology’, 244.
77
Ervin Staub, The Roots of Evil. The Origins of Genocide and Other Group Violence (Cambridge:
Cambridge University Press, 1989) 124.
78
Clemens Kroneberg, Isolde Heintze, and Guido Mehlkop, ‘The Interplay of Moral Norms and Instrumental
Incentives in Crime Causation’, Criminology 48:1 (2010) 259-294, 283-284.
74
29
As noted, values differ from person to person. It is when a person’s specific values are activated that the
strongest motivation comes into play. It has been shown that intrinsic motivation, “behavior driven by
factors internal to the person [having] inherent value or meaning to them irrespective of the outcome”,79
leads to a better task performance. Also, being intrinsically motivated by a task means that performing
it will lead to higher satisfaction.80 This intrinsic motivation is opposed to extrinsic motivation, which
means that an activity is being done “in order to attain some separable outcome”. 81 When a person is
extrinsically motivated, he is doing something because of a reward or threat that is externally given. He
does it, not because he wants to do so himself, but because there is an incentive or disincentive that is
making him do it. These external motives, such as rewards, threats or competitive pressure have been
shown to have a negative impact on enjoyment and motivation.82 It is not surprising therefore that people
prefer to act on intrinsic rather than extrinsic motivation and often feel intrinsic motivation to be a more
proper guideline.83
Yet, there is a variety in the types of extrinsic motivation. According to Edward Deci and
Richard Ryan, intrinsic and extrinsic motivation can be placed on a continuum, with extrinsic motivation
on the far left side and intrinsic motivation on the far right.84 In between are various, milder, forms of
extrinsic motivation. Although full discussion of all these varieties falls outside of the scope of this
study, it is interesting to note the options of ‘external regulation’ and ‘integration’. When an act is
motivated by external regulation, it means that it is performed because of a salient punishment. For
example, someone who disagrees with a parking ticket pays it anyway for fear of prosecution. He has
the feeling that his act is caused by outside forces, does not identify with the source of the motivation
and therefore perceives the act to be entirely extrinsically motivated. In Deci and Ryan’s terms, ‘the
perceived locus of causality’ is external.85 However, extrinsic motivation may also lead to the integration
of the norms espoused by the external motivator. These norms are brought “into congruence with one’s
other values and needs” and therefore the perceived locus of causality will also be internal.86 The
integration of the norms of an extrinsic motivator usually only takes place when the motivator has some
legitimacy and the norms espoused by it to some extent resonate with the person’s own norms and
values.87
Lucy J. Robinson et al., ‘Effects of Intrinsic and Extrinsic Motivation on Attention and Memory’, Acta
Psychologica 141:2 (2012) 243-249, 243.
80
Sheena S. Iyengar and Mark R. Lepper, ‘Rethinking the value of choice: A cultural perspective on intrinsic
motivation’, Journal of Personality and Social Psychology 76:3 (1999) 349–366, 349.
81
Richard M. Ryan and Edward L. Deci, ‘Intrinsic and Extrinsic Motivations: Classic Definitions and New
Directions’, Contemporary Educational Psychology 25:1 (2000) 54-67, 60.
82
Robinson et al., ‘Attention and Memory’, 243.
83
Higgins, ‘Engagement’, 456.
84
For the diagram, see: Ryan and Deci, ‘Intrinsic and Extrinsic Motivations’, 61.
85
Ibid., 61-62.
86
Ibid., 62-63.
87
In §1.2.3 the role of legitimacy in the integration of norms is discussed in further detail.
79
30
The integration of norms disseminated by an external motivator is exactly what is advocated by
proponents of an “expressionist” role for international criminal tribunals.88 The main argument of these
scholars is that international criminal tribunals should communicate messages to the world population
about the norms that should be adhered to. By prosecuting – and punishing – those that offend them,
these norms are reaffirmed and can subsequently be integrated into people’s value sets. As such, these
norms become one’s own and the chance that they are offended is therefore correspondingly diminished.
However, the problem with threats of international criminal tribunals, is that, very often, they conflict
with the values that are internal to those that are threatened. Furthermore, they are rarely perceived to
be legitimate. As will be noted in chapters 2 and 3, both the ICTY and the ICC had and have major
legitimacy problems. As these two factors are essential for the integration of norms that come from
external motivators, it does not seem likely that the message that is communicated by international
criminal tribunals will truly be taken up by the world’s population, integrated into people’s self-identity
and as such voluntarily and willingly adhered to. This is another explanation for why the use of external
incentives and disincentives, such as legal sanction threats, has limited power in guiding behavior in the
desirable direction.
In conclusion
The answer to the question of “why do we do what we do?” can thus be answered with the following.
On a meta-level, we want to survive, we want pleasure, and we want to be effective. On the individual
level, we act on a previously formed set of values. Our behavior is moderated by moral norms, which
dictate which actions are appropriate and which actions are not. We strive to act in accordance with our
own values and prefer to act out of intrinsic motivation rather than out of extrinsic motivation. This is
problematic for the deterrent potential of international legal sanction threats, because for many war
criminals these threats are seen as an extrinsic motivator, whose norms and values are not in accordance
with their own.
Marlies Glasius, ‘Too much law, not enough justice? The dominant role of the legal discourse in
transitional justice’, Paper Presented at the Conference “Making Peace and Justice: Images, Histories,
Memories”, 22 March 2013, Ottone, Utrecht, NL.
88
31
§1.1.3 Personality
Individual differences in values and the way that we seek to fulfill them are to a large extent explained
by differences in personality. As noted above, someone’s personality is an important determinant of his
or her behavior. Personality, then, is a diffuse term, which can mean multiple things and be understood
in many ways. It is therefore not surprising that various definitions of ‘personality’ have been given. In
this piece, the emphasis will be on the psychological perspectives on personality. The relevant scholarly
discipline for this is personality psychology. Also, insights from political profiling, which can be seen
as a mix of political psychology and personality psychology, will be used. One authoritative handbook
on personality psychology defines personality as “the set of psychological traits and mechanisms within
the individual that are organized and relatively enduring and that influence his or her interactions with,
and adaptations to, the intrapsychic, physical and social environments [italics in original]”.89 This
definition emphasizes the fact that our personality is defining for the way that we react to certain
situation and as such has important explanatory power in understanding why an individual responds to
a certain situation in a certain way and why these responses differ from one individual to the other. As
this study aims to understand why Slobodan Milosevic and Joseph Kony seemed impervious to
international prosecution threats, it is thus incredibly important to properly understand their
personalities. Therefore, this section will try to answer the question of how we can accurately assess
their personality.
Personality is one of the things that sets one human being apart from the other. Most personality
psychologists tend to see a personality as consisting of a set of traits, an approach to personality that is
known as the ‘dispositional approach’.90 Traits are “dimensions of individual differences in tendencies
to show consistent patterns of thoughts, feelings, and actions”.91 The English language is rife with words
that describe people’s traits. Lexical analysis in the 1930s identified 17.953 ‘trait terms’.92 In the 2010s
the amount of ‘trait-descriptive adjectives’ has expanded to over 20.000.93 From this vast array of terms
that describe someone’s personality, personality psychologists have, in the past twenty years, identified
five traits that are thought to be most essential and most enduring in shaping the way that we respond to
various stimuli.94 These Big Five – called dispositional traits, since they are relatively stable aspects of
individuals –are (1) Extraversion, (2) Agreeableness, (3) Conscientiousness, (4) Emotional Stability,
89
Randy J. Larsen and David M. Buss, Personality Psychology: Domains of Knowledge About Human Nature
(4th Edition, New York: McGraw Hill, 2010) 4. For a detailed analysis and explanation of this definition, see:
Ibid., 5-10.
90
Other approaches to personality psychology are: biological, intrapsychic, cognitive-experiential, social and
cultural and adjustment. See: Ibid., 14-18.
91
Robert R. McCrae and Paul T. Costa, Personality in Adulthood (New York: Guilford Press, 1990) 23.
92
Larsen and Buss, Personality Psychology, 78.
93
Ibid., 4.
94
Alan S. Gerber et al., ‘The Big Five Personality Traits in the Political Arena’, Annual Review of Political
Science 14 (2011) 265-287, 266.
32
and (5) Openness to Experience.95 Although questions have been raised about the Big Five’s
comprehensiveness,96 a remarkable consensus has been achieved around it.97 Furthermore, clinical
psychiatrists have found that it is also applicable in the psychotherapeutic context.98 With only five
different traits, it is relatively easily measured. This has made it possible for a wide variety of disciplines
to use the model to study links between personality and certain behaviors.99 Personality traits are thus
important in explaining different individual behavioral tendencies.
It must be noted, however, that the Big Five are of limited use for this study. Milosevic has been
dead for some time now and Joseph Kony is not known for his opacity or approachability to
psychologists who want to measure how he scores on the Big Five personality traits. And yet, some
research has been done that has looked at links between the Big Five and various attitudes and political
behaviors. With the knowledge that has arisen from this research, we can make some founded
assumptions about the way that the personalities of Milosevic and Kony would have fit in these Big
Five. This research is analyzed below.
A direction of research that is particularly interesting for this study has looked for links between the
Big Five personality traits and prejudice. Especially Milosevic has directed violence at particular ethnic
groups – amongst others Albanians, Bosniacs, and Croats. Certain prejudices must have led to the
dehumanization which made it possible to try and wipe out whole ethnic groups. Multiple researchers
have shown that there are clear links between certain personality traits and prejudice. One recent metaanalysis, reviewing 71 empirical studies in this direction, found that low Openness to Experience – “the
breadth, depth, originality, and complexity of individuals’ mental and experiential life”100- and low
Agreeableness – which “contrasts a prosocial and communal orientation toward others with
antagonism”101 – significantly predict prejudice.102 These personality traits were not linked directly to
prejudice, however. Two social attitude constructs, Right-Wing Authoritarianism (RWA) – emphasizing
“submission, conventionalism, and aggression”103 – and Social Dominance Orientation (SDO) – which
“taps endorsement of intergroup hierarchies and inequalities resulting from a tough-minded personality
The Big Five are sometimes referred to as ‘the Five Factor Model’. See: Larsen and Buss, Personality
Psychology, 77-78; Chris G. Sibley and John Duckitt, ‘Personality and Prejudice: A Meta-Analysis and
Theoretical Review’, Personality and Social Psychology Review 12:3 (2008) 248-279, 251.
96
See for example, Sampo V. Paunonen and Michael C. Ashton, ‘Big Five Predictors of Academic
Achievement’, Journal of Research in Personality and Social Psychology 81:3 (2001) 524-539.
97
Caprara et al., ‘Personality and Politics’, 6; Gerber et al., ‘Political Arena’, 266; Larsen and Buss, Personality
Psychology, 87-88.
98
Timothy R. Miller, ‘The Psychotherapeutic Utility of the Five-Factor Model of Personality: A Clinician’s
Experience’, Journal of Personality Assessment 57:3 (1991) 415-433, 431-432.
99
See for example: Gerber et al., ‘Political Arena’; Sibley and Duckitt, ‘Personality and Prejudice’.
100
Gerber et al., ‘Political Arena’, 267.
101
Ibid.
102
Sibley and Duckitt, ‘Personality and Prejudice’, 266.
103
Gordon Hodson, Sarah M. Hogg, and Cara C. Macinnis, ´The Role of “Dark Personalities” (Narcissism,
Machiavellianism, Psychopathy), Big Five Personality Factors, and Ideology in Explaining Prejudice’, Journal
of Research in Personality 43:4 (2009) 686-690, 687.
95
33
and competitive worldviews” 104 – have been shown to have important mediating effects, meaning that,
for example, low Openness to Experience, predicts RWA, which is directly linked to prejudice.105 Both
social attitude constructs play a role in the explanation of the way in which Slobodan Milosevic and
Joseph Kony formed their beliefs, what their personality was like and how they were able to gather such
a large following. This will be further explored in the case studies below.
In the last decade there has also been a surge in interest for ‘dark personalities’, subclinical
personality traits that are strongly linked to negativity towards others and seem to play a large role in
explaining prejudice and (the perception of) intergroup threats. These dark personalities are narcissism,
Machiavellianism, and (subclinical) psychopathy.106 People with subclinical psychopathy are
“characterized by high impulsivity, callousness, interpersonal manipulation, exploitation, and
stimulation-seeking, and by low empathy, anxiety, and remorse”.107 Interpersonal manipulation and
exploitation is also seen in Machiavellianism, along with the deception of and disregard for others. 108
Narcissism is marked by an excessive sense of self-importance, ideas of grandiosity and an extreme
sensitivity to criticism.109 Although these personality types are not necessarily harmful in and of
themselves, when they are combined they can be disastrous. The problem is that these personality types
are related to each other and often overlap. The Dark Triad, especially narcissism, is often found in
authoritarian politicians and rebel leaders.110 It is not hard to imagine some examples of these
personalities being found with committers of mass atrocities. The descriptions given above are to some
extent also applicable to our case studies, as will be shown in the chapters below.
The links described above are just a few examples of personality traits affecting political behavior.
There are many more ways in which personality has an effect on the way that people act in a political
context. Idiosyncratic personality features are especially influential in authoritarian social settings.
When there is a single, charismatic person with a large amount of authority, who is accustomed to
making decisions mostly on his own, personality will have the greatest effect on the decisions being
taken. In crisis situations this effect is even more intensified (see also §1.1.1).111
So, knowing how personality psychologists view personality, this study now turns to the main question
that this section tries to answer: how can we accurately assess someone’s personality? According to
personality psychologists, this can be done with four different types of sources, all with their own pros
and cons. These sources are self-report data, observer-report data, test data, and life-outcome data.112
104
Ibid., 687.
Sibley and Duckitt, ‘Personality and Prejudice’, 266.
106
Hodson et al., ‘Explaining Prejudice’, 686.
107
Ibid.
108
Ibid.
109
Ibid.
110
Post, Leaders and Their Followers, 25
111
Ibid., 20-21.
112
The part about sources for personality assessment follows Larsen and Buss, Personality Psychology, 24-36.
The pros and cons of the different sources can also be found here.
105
34
For the case studies, observer-report data and life-outcome data will be the most useful. Self-report data
has some use, although it is necessarily limited because of the limited access to the people whose
personalities have to be described. Still, there have been a number of interviews with Milosevic and
Kony, although these were not conducted by psychologists but by journalists. Test data has no use at
all, since no clinical tests have taken place. Thus, in assessing the personalities of the case studies, this
piece will mostly make use of observer-report data – profiles, biographies, and the like – and lifeoutcome data – the historical events in their lives and the things that they did.
Personality psychologists are not the only scientists interested in the accurate assessment of
individuals’ personalities. Political psychologists, especially those who try to profile political leaders,
are equally interested in explaining the acts of individuals through personality assessments.113 State
leaders have much use for an accurate profile of their political adversaries. In this way they know how
to properly interpret these adversaries’ actions and devise their policies accordingly. Political profiles
are often made with only a small amount of information. Political psychologists who profile politicians’
personalities usually look at their youth, important life events that shaped their self-image, their
(political, bureaucratic, business, etc.) experience, the effects of mentors and role models, cultural
influences, their personal life, as well as ego-documents and speeches.114 Political psychologist Jerrold
M. Post has also looked at “the psychopolitics of illness in high office”.115 By analyzing these pieces of
information, a good political psychologist can give a relatively accurate assessment of the individual’s
personality. Insights from this discipline will therefore be used in the personality assessments of
Slobodan Milosevic and Joseph Kony.
In conclusion
To conclude, personality consists of a set of organized values and traits that acts as significant predictors
of behavior. Psychologists have analyzed a Big Five of personality traits which are most important in
influencing behavior and other disciplines have picked up this five factor model to research correlates
between personality characteristics and all sorts of behaviors. To assess the personalities of Slobodan
Milosevic and Joseph Kony, multiple sources can be used, most importantly observer data and lifeoutcome data. Also, political profiling offers valuable insights into personality assessment.
113
See for example: Post, Leaders and Their Followers.
Ibid., ix-x. Foreword by Alexander L. George.
115
Ibid., 50-67.
114
35
§1.2 The relationship between the court and the criminal
After having answered some more general questions about human nature, this study now turns to the
specific relationship between the men in question – war criminals, people who ordered mass atrocities
– and the legal institution that is issuing threats which are meant to stop them. In the case of Slobodan
Milosevic, this institution was the ICTY; for Joseph Kony, it was the ICC. To adequately understand
this relationship, there are a number of features of it that need to be discussed. The first feature that
merits discussion is the general assumption that these tribunals are able to stop (potential) war criminals
by simply threatening them with prosecution. The second feature that needs to be discussed is the
influence of extralegal sanctions on the decision to commit crimes. This feature is especially interesting
in the context of mass atrocities. The third, and final, topic that will be discussed is the relevance of the
legitimacy of these international criminal tribunals to understanding the way in which they influence the
behavior of these war criminals. The features of the specific relationship between the ICTY and
Milosevic and the ICC and Kony will be addressed in the case studies below. The main source of
knowledge for all of these features is criminology, especially the criminological discipline of deterrence
theory, which studies the (potential) deterrent effect of legal sanctions.
§1.2.1 Deterrence
Deterrence theory forms the scientific background for the assumption of international criminal justice
proponents that legal sanction threats are able to deter potential criminals. As was noted in the
Introduction, the belief that legal sanction threats are able to fulfill this role still seems to be widespread.
This belief is grounded in two important assumptions. The first assumption is that criminals make the
decision to commit a crime on the basis of a rational analysis of costs and benefits, and only commit the
crime when its benefits outweigh its costs.116 The second assumption is that the risk of legal sanctions
can pose as a significant cost in this analysis. A cost that, when high enough, is able to outweigh the
benefits of a crime and therefore deter a potential offender from committing it.117 Thus, when
international criminal tribunals are propagated as an effective tool for stopping the perpetration of mass
atrocities, it is assumed that these mass atrocities are committed on the basis of some sort of rational
analysis of costs and benefits, and that the legal sanction threats emanating from international criminal
tribunals will be able to influence this analysis in such a way that the perpetration of these crimes is no
longer feasible.
Bonanno, ‘Economic Analysis’, 196-198; Lilly et al., Criminological Theory, 20-22; Paternoster, ‘How
Much’, 770-772.
117
Ibid., 783.
116
36
1. The first assumption: humans are rational
The first assumption, that crimes are committed on the basis of rational, hedonic calculations of costs
and benefits, has to a large extent already been discussed in §1.1.1. Here, it was concluded that the idea
of human decision making as being based on a rational analysis of costs and benefits, seems to be
misguided. Rather, we should see it as purposive and usually responsive to incentives and disincentives,
although not always in the ways that we expect it to be. In the context of the crimes that are the subject
of this study – war crimes, crimes against humanity, genocide and other international crimes that are
severe enough to fall under the jurisdiction of international criminal tribunals – several scholars have
doubted that those who commit such crimes are really engaging in some sort of rational cost-benefit
analysis.118 Reading some of the accounts of what happened during the ethnic cleansings in the former
Yugoslavia, and knowing of the torture and other sadistic treatments that innocent civilians were
submitted to by members of the LRA, might indeed prompt such arguments. Somehow, these crimes
must have been the work of a primordial, blind hatred against another ethnic group – as in the case of
Serbians ethnically cleansing their Bosnian neighbors. Otherwise, its perpetrators must have been
fanatics, blindly following an ideology which forced them to murder thousands of innocent people –
such as the ideology espoused by Joseph Kony, who portrays himself as the Messiah, “the Wizard of
the Nile”. In this view these crimes simply defy comprehension and must have been the work of ‘mad
men’. After all, ‘normal’ people would never have been able to commit such horrible acts.
For the sake of this section’s argument, it is useful to make a distinction here between those who
ordered the crimes and those who carried them out. In other words, a line must be drawn between “senior
leadership and on-the-ground troops”.119 In the case of the latter, it is indeed hard to imagine that they
always carefully considered their acts in a rational fashion.120 Several factors seem to have eliminated
such rational considerations, such as inebriation or intoxication,121 obedience to authority,122 extreme
hatred of the other group,123 and a whole host of social psychological factors that is too exhaustive to
Martin Mennecke, ‘Punishing Genocidaires: A Deterrent Effect or Not?’, Human Rights Review 8:4 (2007)
319-339, 325; David Wippman, ‘Atrocities, Deterrence, and the Limits of International Justice’, Fordham
International Law Journal 23 (1999) 473-488, 476; Dawn L. Rothe and Victoria E. Collins, ‘The International
Criminal Court: A Pipe Dream to End Impunity?’, International Criminal Law Review 13:1 (2013) 191-209,
194-195.
119
Christopher W. Mullins and Dawn L. Rothe, ‘The Ability of the International Criminal Court to Deter
Violations of International Criminal Law: A Theoretical Assessment’, International Criminal Law Review 10:5
(2010) 771-786, 774-775.
120
According to Smeulers, in some cases, even law-abiding citizens make conscious choices about their
involvement in international crimes. When the options are such that the choice is between being involved and
being left out, and as a consequence being left out from society altogether, a large segment of the population
seems to prefer the former. For an overview of these cases, see: Smeulers, ‘Towards a Typology’, 243-260.
121
Ibid., 783.
122
Stanley Milgram, Obedience to Authority: An Experimental View (New York: Harper & Row, 1974); See
also: Smeulers, ‘Typology’, 235-240. See also: Herbert C. Kelman and V. Lee Hamilton, Crimes of Obedience:
Toward a Social Psychology of Authority and Responsibility (New Haven: Yale University Press, 1989).
123
Mennecke, ‘Punishing Genocidaires’, 325-326.
118
37
fully mention here.124 Yet it is striking that in some cases, the foot soldiers who carried out the murder
of innocent civilians, seem to have felt that their acts were perfectly justifiable. For example, in the
context of the ethnic cleansings of Bosnian Muslims by the Serbs, many of those who carried out these
atrocities felt that they were acting out of self-defense. The other side was allegedly doing the same
thing and in a ‘total war’-setting the line between civilians and combatants supposedly was not all that
clear.125 As such, even after a consideration of the rightfulness of their acts, these perpetrators still
concluded that they were both just and necessary. Because in such an ‘inversion of morality’, the
atrocities are both accepted and promoted, it does not seem fair to describe such people as ‘mad’,
however comforting that may be.126 As was noted above, classifying someone as ‘rational’ does not
necessarily mean that his ideas need to conform to some sort of liberal democratic standard. It is not the
substance of the decision making process, but rather the consistency of it that matters. In many instances,
therefore, even “terribly and terrifyingly normal” men are capable of carrying out crimes against
humanity.127
These ‘on-the-ground troops’ are not the focus of this study, however. Both Milosevic and Kony
belonged to the senior leadership. They both held high ranks: Milosevic was the president of Serbia,
Kony was and is the leader of the Lord’s Resistance Army. Moreover, international criminal tribunals
generally focus on those who are deemed to be the most responsible, the people who ordered and
organized the crimes. Since this piece is occupied with studying the reactions of those who are threatened
by international criminal prosecution, it will focus on the senior leadership. For this group of people, the
on-the-ground social psychological mechanisms are harder to observe. The amount of planning and
organization that goes into most genocidal activities seems to preclude an explanation that is focused on
the irrationality of its senior leadership. Most of it clearly is goal-oriented behavior that serves some sort
of purpose to its perpetrators.128 The ones that organize and plan for violations of international criminal
law seem to make at least some sort of calculation about the way in which this is to be done. To some
extent, the pros and cons of alternative routes of action are considered – although this consideration
might limit itself to the choice of whom or what to target. Therefore, they seem to adhere to the bounded
rationality model that was offered in §1.1.1 above. This means that they do respond to incentives and
124
For an overview, see: Alette Smeulers and Fred Grünfeld, International Crimes and Other Gross Human
Rights Violations: A Multi- and Interdisciplinary Textbook (Leiden: Martinus Nijhoff Publishers, 2011) 203-241;
Staub, Roots of Evil, 13-34. For an interesting case study in which these social psychological factors are applied
to the Nazi genocide, see: Christopher R. Browning, Ordinary Men. Reserve Police Battalion 101 and the Final
Solution in Poland (London: Vintage, 1992) 159-189.
125
Wippman, ‘Atrocities, Deterrence’, 477-479.
126
Waller emphasizes that, given the enormous amount of perpetrators involved in genocide, crimes against
humanity and war crimes, it is statistically and diagnostically impossible that they all suffered from some sort of
psychological deficiency which explains their acts. See: James Waller, Becoming Evil: How Ordinary People
Commit Genocide and Mass Killing (Oxford: Oxford University Press, 2002) 69. Waller is quoted in: Smeulers,
‘A Typology’, 234.
127
Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, 2006
[1963]) 264.
128
Mullins and Rothe, ‘The Ability’, 775-776.
38
disincentives, although not always in the same way, and not always in the way that we expect them to.
As such, because some sort of calculation is made, they should be more susceptible to legal sanction
threats than the on-the-ground troops.129
In the discussion below of how legal sanction threats can pose as disincentives, it is important
not to lose track of the powerful incentives that mass atrocities can offer to some actors. First of all,
hatred and prejudice can play important roles in the decision to commit these crimes. Often, those who
engage in mass atrocities are supported by an ideology (or at least a belief) that is based on feelings of
some sort of (ethnic) superiority.130 In these ideologies, the murder and torture on members of the ‘outgroup’ – the other racial, tribal, ethnic or religious group, other political faction etc. – is often justified
and even encouraged.131 Therefore, although these crimes might not be “spontaneous outbursts” of
“primordial hatred”,132 hatred of the victims of mass atrocities can definitely be an important incentive
to commit these crimes. Moreover, hatred of an out-group dehumanizes its members, significantly
facilitating the commitment of horrendous crimes against them.133 Second, as has been noted earlier,
acting in accordance with one’s own values elicits a positive feeling. Therefore, believers of extreme
ideologies that command the death of innocent civilians, prefer to act on the values espoused by these
ideologies. Third, as has been mentioned earlier, human behavior is goal-driven. When we take into
account the amount of energy and enthusiasm with which many perpetrators try to achieve the goals put
forward by their ideologies, we have to conclude that these value-systems can also act as important
incentives in their decision to commit mass atrocities. Fourth, and last, for many leaders of groups that
commit crimes against humanity and/or genocide, these crimes are a way to attain power or maintain
their hold on it.134 For leaders who order mass atrocities, the lust for power seems to pose as an important
incentive in the decision making process. The four factors outlined above, then, heavily influence the
incentive side of the decision making process. This incentive side should not be forgotten, when this
study now turns to the study of the potential disincentive that international legal sanction threats can
deliver.
Rothe and Collins, ‘Pipe Dream’, 195.
According to Alex Alvarez, all genocides are supported by some sort of ideology. See: Alex Alvarez,
‘Destructive Beliefs: Genocide and the Role of Ideology’, in: Alette Smeulers and Roelof Haveman (eds.),
Supranational Criminology: Towards a Criminology of International Crimes (Antwerp: Intersentia, 2008) 213231, 215.
131
Rothe and Collins, ‘Pipe Dream’, 196.
132
Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, The
American Journal of International Law 95:1 (2001) 7-31, 7.
133
For this process of dehumanization, see, inter alia: Eric Markusen, ‘The Genocidal Mentality at the Dawn of
the Twenty-First Century’, The Aegis Review on Genocide 1 (2003) 11-14; G. Tendayi Viki, Daniel Osgood, and
Sabine Phillips, ‘Dehumanization and Self-Reported Proclivity to Torture Prisoners of War’, Journal of
Experimental Social Psychology 49:3 (2013) 325-328.
134
Akhavan, ‘Beyond Impunity’, 12. See also: Jack Snyder, From Voting to Violence: Democratization and
Nationalist Conflict (London: W.W. Norton & Company, 2000) 45-91.
129
130
39
2. The second assumption: Punishment deters future offenders
The second assumption of the adherents of deterrence theory is, that the threat of legal punishment can
pose as a significant disincentive to those who are considering to commit a crime. Deterrence is achieved
when the potential offender perceives the disincentive of the legal sanction threat to be so strong that
this disincentive outweighs the incentives of the crime that is under consideration.135 There are three
properties of the potential punishment that are important in this context. These are the potential
punishment’s certainty, severity and celerity (swiftness). All three are thought to have an inverse relation
to crime. Thus, this line of reasoning argues, when sanctions are more certain, more severe and/or more
swift, less crimes will be committed.136
However, there are several problems with this line of reasoning. First of all, the empirical
evidence for the second assumption of deterrence theory is very weak. Research on the relationship
between the objective properties of punishment and crime rates has delivered extremely mixed results.
Therefore, strong evidence for the idea that legal punishment can directly deter future crimes is
lacking.137 To some extent the lack of a clear link between objective sanction properties and crime rates,
has been explained by the fact that it is not the objective properties of punishment which matter to a
potential criminal, but rather the way in which he perceives these properties. Since he is the one that has
to make the decision, it is his perception of the legal sanction threat which is factored into the decision
making process. This is a notion stressed by perceptual deterrence theorists.138
Criminologists have shown that the objective properties of punishment rarely correlate
positively with the way in which these properties are perceived.139 In other words, people do a poor job
at estimating the actual certainty of arrest, the maximum penalty that stands for the crime, and the
average time it takes for law enforcement officials to apprehend the criminal. There seems to be no link
between the objective properties of legal sanctions in a certain area, and its inhabitants’ perception of
them.140 What this means, is that raising the objective certainty, severity, and celerity of punishment
does not necessarily translate into higher risk estimates by potential offenders. Therefore, as far as
deterrence goes, improving the objective properties of punishment is useless. This runs counter to the
argument made by many commentators on the deterrent effect of international legal punishment. 141 In
their view, the main reason why violators of international criminal law barely seem to be bothered by
the chance of international legal prosecution, is that the chance of actually being arrested is so
appallingly low – a chance that has been likened by David Wippman to “losing the war crimes
Bonanno, ‘The Economic Analysis’, 197; Paternoster, ‘How Much’, 783.
Robert Apel, ‘Sanctions, Perceptions and Crime: Implications for Criminal Deterrence’, Journal of
Quantitative Criminology 29:1 (2012) 67-101, 69; Paternoster, ‘How Much’, 782-787; Pogarsky, ‘Deterrence
and Decision Making’, 241.
137
Paternoster, ‘How Much’, 818.
138
Lilly et al., Criminological Theory, 346.
139
Gary Kleck et al., ‘The Missing Link in General Deterrence Research’, Criminology 43:3 (2005) 623-660,
653; Paternoster, ‘How Much’, 804-810.
140
Kleck et al., ‘The Missing Link’, 642-650.
141
See, for example: Mullins and Rothe, ‘The Ability’.
135
136
40
prosecution lottery.”142 They plead for an increased effort to raise the certainty of legal sanctions, thus
empowering the deterrent effect of legal sanction threats. However, in the view of the criminological
findings outlined above, as long as potential offenders do not actually perceive the legal sanction to be
more certain – which increasing the legal sanction’s objective certainty does not guarantee – this
increased effort is useless as far as deterrence goes.
Perceptual deterrence research has resulted in some evidence for an inverse relationship between
the perceived certainty of legal punishment and the decision to commit a crime. Yet, there is no
convincing evidence for a significant correlation between the severity or celerity of legal punishment
and the willingness to commit a crime.143 Certainty has therefore been identified as the most important
variable in crime control. However, even for certainty the empirical evidence has been judged to be
“modest to negligible.”144 The fact that a link between the perceptual properties of punishment and the
decision to commit a crime has not been empirically established in a convincing way, remains one of
the biggest challenges for the assumption that punishment can deter crime.
This lack of evidence is even greater for the idea that international criminal tribunals can deter
potential war criminals.145 Although strong empirical evidence does not exist in either direction – one
empirical analysis finds almost no role for the ICC in deterring future offenders,146 while another actually
finds a much stronger deterrent effect147 – the problems that exist for deterrence theory on the national
level, are even stronger on the international level. In part this is because it is problematic to extrapolate
what is essentially a national theory of crime control to the international level.148 But more importantly,
this is because those who propose that international criminal tribunals are the best way to prevent mass
atrocities, fail to put forward a single case in which the threat of international prosecution deterred a
potential offender in a meaningful way.
A second qualification of the assumption of deterrence advocates that legal sanction threats can deter
crime is the fact that criminologists have shown that different individuals respond to legal sanction
threats in different ways. Economic analyses of offender’s choice have usually disregarded the influence
of personal differences on offender decision making.149 As was noted in the previous sections, however,
Wippman, ‘Atrocities, Deterrence’, 477.
Mullins and Rothe, ‘The Ability’, 773; Daniel S. Nagin and Greg Pogarsky, ‘Integrating Celerity,
Impulsivity, and Extralegal Sanctions into a Model of General Deterrence: Theory and Evidence’, Criminology
39:4 (2001) 865-892, 883; Paternoster, ‘How Much’, 812. However, for a counterargument against the idea that
certainty is the only sanction property that matters, see: Silvia M. Mendes and Michael D. McDonald, ‘Putting
Severity Back in the Deterrence Package’, Policy Studies Journal 29:4 (2001) 588-610.
144
Lilly et al., Criminological Theory, 347.
145
Mennecke, ‘Punishing Genocidaires’, 323-324.
146
Julian Ku and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian
Atrocities?’, Washington University Law Review 84:4 (2006) 777-834.
147
Hunjoon Kim and Kathryn Sikkink, ‘Explaining the Deterrent Effect of Human RIghts Prosecutions for
Transitional Countries’, International Studies Quarterly 54:4 (2010) 939-963.
148
Mennecke, ‘Punishing Genocidaires’, 323.
149
Bonanno, ‘Economic Analysis’, 194.
142
143
41
psychologists and criminologists have shown that personal traits are highly influential in the way that
we respond to incentives and disincentives. In this way, some of us are more deterrable than others.
Deterrability, then, “refers to the offender’s capacity and/or willingness” to respond to sanction
threats.150 Greg Pogarsky identifies three different categories of deterrability, which can be placed along
a hypothetical continuum. On the one end of this continuum are “acute conformists”, persons “for whom
extralegal influences ensure compliance with the law” and who consequently do not need to be
deterred.151 On the other end of this continuum are the “incorrigibles”, persons who are “impervious to
dissuasion”, who often suffer from psychopathological difficulties and therefore cannot be deterred. 152
In the middle of this continuum are the deterrable offenders. They are willing to respond to legal sanction
threats and are “neither strongly committed to crime nor unwaveringly conformist”.153 Many scholars
place the senior leadership of those groups that commit mass atrocities in this deterrable category. These
scholars stress the relative rationality that goes into planning these crimes and furthermore emphasize
that the leadership figures, because of their social and political position, are the ones who have the most
to lose from being targeted by international prosecutions.154 Therefore, those in the senior leadership
should be ideal targets for legal sanction threats.
However, individuals differ in their deterrability in another way, in what is known as ‘risk
sensitivity’. Risk sensitivity describes the extent to which the offender is aware of the risk of being
caught and takes measures to minimize this risk.155 Individuals who score high on risk sensitivity would
fall squarely into the category of deterrable offenders, since they are willing to commit crimes and make
instrumental calculations about which crime to commit or whether not to commit a crime at all.
However, the paradox is that, even though this group of offenders might be most susceptible to sanction
threats, they are also among the most difficult to deter. Risk sensitive offenders always come up with
new ways to avoid being caught. They employ new tactics, change their targets or avoid areas that are
frequently patrolled by law enforcement agencies.156 As such, since the perceived certainty of legal
sanctions is very low and risk sensitive offenders constantly seek ways to minimize it, these offenders
might be among those who are the most difficult to deter. This means that, even for those offenders who
are deemed to be most susceptible to legal sanction threats, these threats might not be effective enough
to deter them.
Bruce A. Jacobs, ‘Deterrence and Deterrability’, Criminology 48:2 (2010) 417-441, 417.
Greg Pogarsky, ‘Identifying “Deterrable” Offenders: Implications for Research on Deterrence’, Justice
Quarterly 19:3 (2002) 431-452, 433.
152
Ibid.
153
Nagin and Paternoster, ‘Enduring Individual Differences’, 471.
154
Mullins and Rothe, ‘The Ability’, 774.
155
Jacobs, ‘Deterrence and Deterrability’, 422-423.
156
This process is known as ‘restrictive deterrence’. For example a criminal decides to rob a grocery store
instead of a bank, because he knows that the bank employs better security measures. Although in this example
the offender shows a susceptibility to the threat of being apprehended, he still commits a crime and thus is not
meaningfully deterred. See: Ibid., 433.
150
151
42
Risk sensitivity is a trait that seems to be applicable to many violators of international criminal
law, especially those in the senior leadership. There is much anecdotal evidence of perpetrators trying
to minimize their apprehension risk. In Bosnia, for example, after the ICTY was erected, on-the-ground
soldiers started to try and avoid identification. They wore black ski masks while they committed their
atrocities, and, when NATO forces closed in, they “intensified efforts to conceal mass graves and hide
evidence of criminal conduct”.157 Slobodan Milosevic, also, tried to minimize evidence of his
involvement in the ethnic cleansings that took place under his command. He had his name removed
from the records of meetings which discussed the crimes and denied any knowledge of the mass
atrocities taking place.158 Furthermore, Joseph Kony changed his tactics when African countries
intensified their efforts to apprehend him. He changed his area of operations and lowered the profile of
his attacks.159
In addition, many leaders of mass atrocities use proxies to carry out the atrocities. For example,
Omar al-Bashir, the target of an arrest warrant issued by the ICC for his alleged involvement with the
genocide in Sudan’s southern province of Darfur, used the Janjaweed militias to attack civilians in the
area, and in this way maintained plausible deniability.160 Another tactic that senior leadership figures
employ is the ‘rogue agent’-scenario: they claim that there was a ‘bad apple’ in their midst who
committed the crimes without their knowledge or consent.161 Tactics like those outlined above are often
used by violators of international criminal law to avoid detection or identification. They are aware that
they need to minimize the chance of being apprehended, and they constantly find ways to do so.
Therefore, it seems justified to call these people ‘risk sensitive’. This will be explored in more detail in
the case studies below.
The fact that individuals differ in the way that they respond to legal sanction threats, challenges
deterrence theory in two distinct ways. First, it complicates the evidence for deterrence which does exist.
Often, when someone does not commit a crime, it is not the legal sanctions which ensure compliance,
but rather the fact that the person does not consider crime as an option at all. Therefore, it is unlikely
that legal sanction threats are responsible for the fact that most people do not commit crimes. Second, it
needs to be realized that legal sanction threats do not have the same effect on everyone. Some criminals
Wippman, ‘Atrocities, Deterrence’, 480.
Tom J. Farer, ‘Restraining the Barbarians: Can International Criminal Law Help?’, Human Rights Quarterly
22:1 (2000) 90-117, 94.
159
Bill Oketch, ‘”Kony 2012” Campaign Too Late in North Uganda’, Institute for War and Peace Reporting, (20
March 2012), available online at: http://iwpr.net/report-news/kony-2012-campaign-too-late-north-uganda (26
April 2013).
160
Pablo Castillo, ‘Rethinking Deterrence: The International Criminal Court in Sudan’, UNISCI Discussion
Papers 13 (2007) 167-184, 173.
161
Jamieson described this process as juridical ‘othering’. See: R. Jamieson and K. McEvoy, ‘State Crime by
Proxy and Juridical Othering’, The British Journal of Criminology 45:4 (2005) 504-527. See also: Dawn L.
Rothe and Christopher W. Mullins, ‘Beyond the Juristic Orientation of International Criminal Justice: The
Relevance of Criminological Insight to International Criminal Law and its Control: A Commentary’,
International Criminal Law Review 10:1 (2010) 97-110, 108-110; Alex Alvarez, ‘Militias and genocide’, War
Crimes, Genocide, & Crimes against Humanity 2 (2006) 1-33, 17-21.
157
158
43
simply cannot be deterred, while others are highly susceptible to legal sanction threats, yet constantly
find ways to minimize the risk of being apprehended. Because these ‘risk sensitive’ offenders perceive
the chance of legal sanctions to be so small, they are not deterred from committing crimes.
It is interesting to note in this context that criminologists have shown that offenders learn from
their experiences with the criminal justice system. An offender updates his perception of the chance of
being caught for a certain crime by looking at the amount of times he got away with it, relative to the
times he did not.162 Evading arrest multiple times therefore downgrades the offender’s perception of the
chance of arrest. For example, when someone has committed multiple atrocities and he got away with
it, he will downgrade his perception of the certainty of punishment for this crime. Moreover, offenders
learn from their surroundings.163 Informal networks of communication transfer the experiences of peers
with the criminal justice system to the potential offender, meaning that when he sees or hears about
someone else getting away with a crime, he will also downgrade his own perception of the chance of
being caught. Criminologists have dubbed the combination of these two effects the ‘experiential
effect’.164
This experiential effect can be an important factor in explaining some of the lack of a deterrent
effect of international criminal tribunals.165 The culture of impunity which is still associated with the
commitment of crimes against humanity tells the potential perpetrator that there is only a very small
chance that he will actually be indicted.166 Furthermore, even those who are indicted often escape
conviction as the international community fails to take serious its obligation to apprehend these
criminals. To quote Akhavan, “the balance is still firmly on the side of political expedience and
submission to power rather than justice”.167 Slobodan Milosevic was able to avoid arrest for a long time
after he was indicted by the ICTY in 1999: he was not arrest until 2001, after he fell from power. People
like Joseph Kony and Omar al-Bashir of Sudan have been escaping arrest even longer, since October
2005 and March 2009 respectively. In the meantime, the violence against civilian populations continues.
Taking into account the experiential effect therefore means that these people’s perception of the certainty
of arrest is significantly downgraded. Furthermore, when people like Syria’s Bashir al-Assad, who has
been threatened by ICC prosecution, take a look at their surroundings, they will hardly have the idea
that they face a serious threat of legal sanctions. Seeing how few perpetrators actually get indicted and
arrested, they will downgrade their perception of the certainty of international legal sanctions. As such,
Julie Horney and Ineke H. Marshall, ‘Risk Perceptions Among Serious Offenders: The Role of Crime and
Punishment’, Criminology 30:4 (1992) 575-594, 587-590.
163
Jacobs, ‘Deterrence and Deterrability’, 434-435; Pogarsky, ‘Deterrence and Decision Making’, 247-248.
164
Horney and Marshall, ‘Risk Perceptions’, 575-577; Jacobs, ‘Deterrence and Deterrability’, 434-435;
Pogarsky, ‘Deterrence and Decision Making’, 247.
165
Rothe and Collins, ‘Pipe Dream’, 196.
166
Mennecke, ‘Punishing Genocidaires’, 325; Kenneth A. Rodman, ‘Darfur and the Limits of Legal Deterrence’,
Human Rights Quarterly 30:3 (2008) 529-560, 554.
167
Akhavan, ‘Disincentive to Peace’, 652.
162
44
the effect of the disincentive that these sanction threats can deliver, is minimized even further. These
issues will be treated in further detail in the case studies below.
The third problem with the assumption of deterrence theorists that legal sanction threats can deter future
offenders, is the fact that criminologists have for a long time established that extralegal influences are
more influential in guiding our behavior than legal influences. The threat of extralegal sanctions usually
looms much larger in a person’s mind than the threat of legal sanctions. For example, using the criminal
offense of drinking and driving, Raymond Paternoster argues that, “if I refrain from drinking and driving
because I fear that my spouse will think less of me if she finds out that I have been drinking and driving,
my inhibition is not due to deterrence but to an extralegal process (social censure or embarrassment)”.168
Extralegal sanction threats such as these play at least as important a role in preventing crime as legal
sanction threats do.169 The way in which these extralegal sanction threats influence the decision to
commit crimes – and how this affects the potential deterrent effect of international criminal tribunals –
will be further discussed in the next paragraph.
In conclusion
In this section it has been shown that the assumptions that deterrence theorists make when they state
that legal punishment can deter future offenders are riddled with problems. First of all, the empirical
evidence for this assumption is weak. Second, individual differences account for the difference in
deterrability of different people. Phenomena such as risk sensitivity, the experiential effect and the
perception of the certainty of legal sanctions are important to understand why international criminal
tribunals seem to have such a hard time deterring offenders. By exploring these problems, some light
can be shed on the reasons why Slobodan Milosevic and Joseph Kony did not seem to care much about
the chance that they would be prosecuted or apprehended. The reactions that they displayed towards
these threats will be analyzed in full detail in the case studies presented in the chapters below.
Paternoster, ‘How Much’, 781.
Nagin and Pogarsky, ‘Model of General Deterrence’, 865; Charles R. Tittle, Ekaterina V. Botchkovar, and
Olena Antonaccio, ‘Criminal Contemplation, National Context, and Deterrence’, Journal of Quantitative
Criminology 27:2 (2010) 225-249, 238.
168
169
45
§1.2.2 Extralegal Sanction Threats
Essentially, extralegal sanctions – sometimes also called informal sanctions – are all the negative
consequences of behavior that fall outside the scope of the legal system. 170 In general, they can be
grouped into two different categories: social censure and self-disapproval. Social censure can take the
form of social isolation, loss of interpersonal contacts or a lowering of community respect.171 The
‘shaming’ of people who violate group norms is a common example of this. Informal sanctions can also
take more violent forms, however, such as corporal punishment and sometimes even death. Selfdisapproval takes place when an act elicits a negative feeling within the person, such as shame. More
specifically, self-disapproval is “the internal dissonance from having violated an internalized behavioral
norm”.172 This dissonance occurs because, as was noted in §1.1.2, human beings have the desire to act
on these internalized norms and values. Moral norms are also important here. Not everybody feels the
same about the appropriateness of different forms of criminal behavior.173 Therefore, while in some
social circles murdering someone leads to extreme social and self-disapproval, in other social contexts
– such as street gangs, terrorist organizations and, as will be shown later, genocidal situations – this
disapproval is lacking.
The threat of extralegal sanctions can have a large impact on people’s behavior. It can pose as
a strong disincentive and in this way significantly guide the decisions that people make. The threat of
extralegal sanctions has been shown to play a much larger role in deterring the general population from
criminal conduct than the threat of legal sanctions does.174 There is some evidence that suggests that
these extralegal sanction threats are even more important in situations in which the rule of law is lacking
and/or the trust in and legitimacy of formal sanctioning mechanisms is generally low. 175 Since
sanctioning institutions that are not perceived as legitimate are not seen as a proper restriction of
behavior – for more on this, see §1.2.3 –, the importance of extralegal sanctioning mechanisms for
controlling crime is increased. In contexts that lack a rule of law, social disapproval and moral norms
need to be relied upon to deter potential offenders from committing crimes. Further undermining the
already limited deterrent effect of criminal justice systems in these contexts, is the fact that they are
often characterized by a lack of effectiveness in the apprehension of perpetrators, which results in a
lower certainty of legal sanctions.176
Paternoster, ‘How Much’, 781.
Kirk R. Williams and Richard A. Hawkins, ‘Perceptual Research on General Deterrence: A Critical Review’,
Law and Society Review 20:4 (1986) 545-572, 558. Williams and Hawkins also emphasize that extralegal and
legal influences can work together. For example, making a specific act punishable under criminal law can lead to
the social condemnation of the act. See: Ibid., 558-566. Payam Akhavan furthermore stresses that indictments
can isolate, stigmatize, and delegitimize leaders. See: Akhavan, ‘Disincentive to Peace’, 652-654.
172
Nagin and Pogarksy, ‘Model for General Deterrence’, 869.
173
Kroneberg et al., ‘Moral Norms’, 264-269.
174
Paternoster, ‘How Much’, 817.
175
Tittle et al., ‘Criminal Contemplation’, 238-244.
176
Such contexts lack a ‘rule of law’, are characterized by a ‘culture of impunity’, etc.
170
171
46
Interestingly, serious international crimes often take place in precisely such contexts. Many of
the African countries that witness crimes against humanity, for example, have formal sanctioning
institutions that are ineffective, politicized, and perceived by the local populace to be illegitimate.177
Therefore, according to the evidence summed up above, in these countries extralegal sanction threats
will usually be much more influential in the criminal decision making process than the threat of legal
sanctions. Moral norms and social censure have high potential to pose as a significant disincentive.
Sadly, however, the social context in which crimes against humanity take place, is often characterized
by an ‘inversion of morality’.178 In this context, the murder, torture and other cruel treatment of members
of the out-group is no longer off-limits. Rather, it is accepted and even encouraged.179 The perpetrators
are told that the victims ‘deserve to die’, that they are not human beings or that the killing is needed to
serve some sort of higher purpose, such as the fulfillment of ideological goals. In this way, the crime is
made legitimate.180 Moral norms that forbid the killing of innocents are no longer relevant and the hatred
of the victimized group can significantly shortcut considerations about the appropriateness of the crime.
Dehumanization of the out-group can further facilitate the act, overriding moral norms that would
normally forbid murder.181 In such a context, the disincentive of “internal dissonance” – if it is
encountered at all – is negated by the incentive of achieving group or individual goals.
Thus, in this context of inverted moral norms, self-disapproval and particularly social censure,
do not take place when the potential offender commits a crime, but rather when he does not. The social
norms in this case demand the crime. The problem is that the potential offender has to fear extralegal
sanctions when he does not conform to these social norms. As the impact of extralegal sanction threats
on the decision making process is so great, it can be said that the potential offender is deterred from not
committing the crime. This notion is important to explain the mass involvement of normally law-abiding
citizens which often characterizes international crimes: they are, in Smeulers’ words, “conformists to
the extreme”.182 In the case of the senior leadership, people like Slobodan Milosevic and Joseph Kony
may fear that they will lose standing with their peers or face disapproval from their community when
they do not further the goals espoused by their ideologies. For example, when Milosevic would have
given in to NATO pressures to stop the ethnic cleansings taking place in the former Yugoslavia, it is
Katherine Erbeznick, ‘Money Can’t Buy You Law: The Effects of Foreign Aid on the Rule of Law in
Developing Countries’, Indiana Journal of Global Legal Studies 18:2 (2011) 873-900, 892-895.
178
Mennecke, ‘Punishing Genocidaires’, 325-326.
179
For an elaborate account of the dehumanization of Jews, the legitimization of their extermination and the way
in which this greatly facilitated the work of the people who had to carry out this extermination, see: Goldhagen,
Hitler’s Willing Executioners.
180
Rothe and Collins, ‘Pipe Dream’, 196. For a case study on the effect of group norms on the willingness to
commit genocide in Rwanda, see: Ravi Bhavnani, ‘Ethnic Norms and Interethnic Violence: Accounting for Mass
Participation in the Rwandan Genocide’, Journal of Peace Research 43:6 (2006) 651-669.
181
For example, in Rwanda the dehumanization of the Tutsis took extreme forms. Hutu radio stations constantly
called for the elimination of the Tutsi inyenzi (literally cockroaches). See also: Ibid., 656.
182
Roelof Haveman and Alette Smeulers, ‘Criminology in a State of Denial – Towards a Criminology of
International Crimes: Supranational Criminology’, in: Alette Smeulers and Roelof Haveman (eds.),
Supranational Criminology: Towards a Criminology of International Crimes (Antwerp: Intersentia, 2008) 3-26,
9.
177
47
probable that he would have lost his reins on power and be shunned by his community. Indeed, not long
after Milosevic gave up Kosovo, he was deposed. As such, extralegal sanction threats which are the
result of the inversion of morality which characterizes the social contexts in which crimes against
humanity take place, can pose as a strong disincentive for giving in to international legal sanction threats.
In conclusion
Extralegal sanctions, those sanctions that fall outside the scope of the legal system, can be grouped into
social censure and self-disapproval. Extralegal sanction threats have been shown to weigh heavily in the
criminal decision making process, much heavier than legal sanction threats. Such threats play an
important role in controlling crime in situations in which the ‘rule of law’ is wanting. However, the
problem is that most genocidal situations are characterized by an inversion of morality. This means that
a potential offenders has to fear extralegal sanctions when he does not commit the act that is demanded
by the group norms. As such, he is deterred from not committing the crime.
48
§1.2.3 Legitimacy
The legitimacy of a court that is issuing a sanction threat has been identified as an important factor in
shaping a person’s reaction to the threat. Legitimacy however, can be defined in multiple ways. Tom R.
Tyler, one of the principal criminologists who have studied legitimacy in the legal context, sees it as a
psychological property of an institution. When the institution is perceived as legitimate, the public holds
the view that its actions and decisions are “appropriate, proper, and just.”183 This also means that the
public feels that its decisions “ought to be followed”.184 Max Weber, a sociologist whose study of
political legitimacy is still a “central point of reference in the study of legitimacy”,185 defined it as “the
probability that to a relevant degree the appropriate attitudes will exist, and the corresponding practical
conduct ensues”.186 Political scientists, who focus more on the legitimacy of authorities and
governments, see a power-holder as legitimate, when it is “justified in claiming the right to hold power”,
or, when it has a recognized “right to govern”.187 This means that it can rule with a certain consensus,
instead of relying on what Joseph Raz has termed “naked power”.188 The distinction between ‘power’
and ‘legitimacy’ is of fundamental importance here.
A consistency in these definitions is the idea that for an institution to be legitimate, it needs
some sort of approval from the wider audience, a recognition that it is ‘morally right’ to follow the rules
and decisions these institutions make. This has been termed ‘audience legitimacy’ 189 or ‘consent
legitimacy’.190 Other approaches ‘purposive legitimacy’ – meaning that the institution is legitimate when
it pursues goals that are “broadly shared and approved by the institution’s constituency”191 – and
‘performance legitimacy’ - which sees an institution as legitimate when it performs the goals that are
set for it in a proper way.192 As the central concern for this study is the reaction of Milosevic and Kony
to international prosecution threats, it will be the way that they perceived the legitimacy of international
criminal tribunals that is most relevant. As such, ‘audience legitimacy’ needs to take center stage here.
But what does it take for a court to be recognized as legitimate? The answer to this question
depends on which definition of legitimacy is used. For example, from the viewpoint of performance
legitimacy, a court is legitimate when it has shown to be able to competently handle cases and adhere to
the principles of a fair trial. Audience legitimacy, which requires the wider audience to recognize its
Tom R. Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’, Annual Review of Psychology
57 (2006) 375-400, 376.
184
Ibid., 375.
185
Anthony Bottoms and Justice Tankebe, ‘Beyond Procedural Justice: A Dialogic Approach to Legitimacy in
Criminal Justice’, Journal of Criminal Law and Criminology 102:1 (2012) 119-170, 126.
186
Max Weber, Economy and Society (4th Edition; Berkely: University of California Press, 1978) 214.
Originally published as Wirtschaft und Gesellschaft in 1921-1922.
187
Bottoms and Tankebe, ‘Beyond Procedural Justice’, 124-125.
188
Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) 128.
189
Bottoms and Tankebe, ‘Beyond Procedural Justice’, 132.
190
Antonio Cassese, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of
International Criminal Justice’, Leiden Journal of International Law 25:2 (2012) 491-501, 492
191
Ibid., 492.
192
Ibid., 493.
183
49
moral right to make decisions and prescribe rules which need to be followed, is much harder to obtain.
In this context, Tyler has stressed the importance of procedural justice. According to his research, there
is a strong correlation between the belief that the actions of authorities are consistent with just and fair
procedure, and the belief that authorities are legitimate.193 This has led Tyler to conclude that it is
procedural justice which is the main defining factor for the legitimacy of institutions. Moreover, a court
can increase a person´s perception of its legitimacy by espousing norms and values that are, to some
extent, shared by that person.194 Hence, there has to be a certain amount of shared consensus.195
When a court wants to be perceived by the audience as being procedurally fair, several criteria
will have to be fulfilled. One important criterion is that the court has to give a fair treatment to the person
being prosecuted. It has to respect his dignity and punish him in a fair way. 196 Furthermore, it is
important that the court´s prosecution activities are not perceived to be discriminatory. 197 When a
population does have the feeling that it is being discriminated by the court, it will have the feeling that
it is being treated unfairly. Such a lack of perceived procedural fairness is an important criticism of both
the ICTY and the ICC. The ICTY was accused by the Serbs of selectivity in its handling of gross human
rights violations in the former Yugoslavia. In the eyes of the Serbs the court focused too much on the
Serbian people and ignored the violations committed by other ethnic groups.198 The ICC has also been
accused of selectivity, because, up to now, all of the situations it has under investigation are centered in
Africa.199 These accusations of discrimination and selectivity are significantly impacting the perceived
legitimacy of these international courts in a negative way.200
With the danger of stating the obvious, it is also important to note that a person’s perception of
a court’s legitimacy is influenced by what he is told by other people about their perception court.201 The
existence of a dominant negative narrative, can be a big obstacle on its path to obtain audience
legitimacy. This is also the main argument of Stuart Ford´s social psychology model of international
tribunals´ perceived legitimacy. He analyzes six factors, put forward by various scholars, which are
thought to be relevant to an international criminal court´s legitimacy. These are “(1) the process by
which the court is created, (2) the location of the court[,] (3) the composition of the staff, (4) the
institutional structure, (5) the procedures used during the trials, and (6) the court’s outreach efforts”.202
Tyler, ‘Psychological Perspectives’, 382.
Ibid., 392,
195
Morris Zelditch, ‘Processes of Legitimation: Recent Developments and New Directions’, Social Psychology
Quarterly 64:1 (2001) 4-17, 8-9.
196
Karen A. Hegtvedt and Cathryn Johnson, ‘Power and Justice: Towards an Understanding of Legitimacy’,
American Behavioral Scientist 53:3 (2009) 376-399, 378-380.
197
Tom R. Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’, Crime and Justice 30 (2003)
284-357, 324.
198
Ford, ‘Social Psychology Model’, 413-414.
199
Rodman, ‘Darfur’, 543. See also the Situations page on the ICC-website: International Criminal Court, ‘All
Situations’, (26 April 2013), available online at: http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/Pages/situations%20index.aspx (26 April 2013).
200
Rothe and Collins, ´Pipe Dream´, 197-200.
201
Morris Zelditch, ‘The Normative Regulation of Power’, Advances in Group Processes 20 (2003) 217-249.
202
Ford, ‘Social Psychology Model’, 408-409. See also his notes 13-18 for the relevant literature.
193
194
50
However, according to Ford, all of these factors are only minimally relevant for the way in which the
grassroots population perceives international criminal tribunals. Using psychological insights on
cognitive biases – see also §1.1.1 – and motivational reasoning (which holds that people only reach
those conclusions that they want to reach203) he arrives at his ‘social psychology model of perceived
legitimacy’. First, he notes that international criminal tribunals usually have to deal with conflicts in
which societies were deeply divided along ethnic, national or religious lines. Often, the different sides
strongly identify with their own group, which has a dominant internal narrative of what happened in the
conflict.204 In such a context, Ford argues, the tribunal’s legitimacy will be a zero-sum game, in which
the perception of its legitimacy “will be driven largely by whom it indicts”.205 In the end, Ford concludes
that in such a situation it is almost impossible for an international criminal tribunal to be perceived as
legitimate by the entire grassroots population.206
But why is it so important that courts have a positive perceived legitimacy? This is because it
has been shown that the perception of the court’s legitimacy has important consequences for the way in
which individuals react to the prosecution threats that these courts issue.207 As noted, when an institution
is perceived to be legitimate its rules and decisions are respected and people feel obliged to follow these
rules. This, in turn, leads to improvements in legal compliance.208 The norms and values that are
espoused by the institution will be internalized by those people, and they become self-regulating, “taking
on the obligations and responsibilities associated with those norms and values as aspects of their own
motivation”.209 Furthermore, perceiving a court as legitimate helps to create a positive perception of the
court as a whole, which has the effect that negative outcomes that follow will be more easily accepted.210
This internalization of norms and values is important, because, as we have seen above, people prefer to
act on norms and values that are their own. Also, when a court is not seen as legitimate, it will not form
a “right and proper restriction of behavior”,211 and, without any threat of a forceful enforcement of
authority, will not be seen as a factor that needs to be seriously considered in the decision making
process. The reaction of Omar al-Bashir to the ICC’s threat of prosecution – defying and ignoring it –
is a clear example of the devastating effects a lack of perceived legitimacy can have on the deterrent
power of legal sanctions.
203
Ibid., 419-439
Ibid., 458-461.
205
Ibid., 440, 461.
206
Ibid., 475-476. However, he does not conclude that this is a sign of failure. According to Ford, the tribunal
can contribute in an important way to the changing of internal narratives that are dominant in the post-conflict
area. By creating a record of what has ‘actually happened’, these narratives might change, which would be an
important stepping stone to reconciliation between the conflict’s warring parties.
207
Rothe and Mullins, ‘Beyond the Juristic Interpretation’, 103.
208
Bottoms and Tankebe, ‘Beyond Procedural Justice’, 155; Hegtvedt and Johnson, ‘Power and Justice’, 392;
Jonathan Jackson et al., ‘Why Do People Comply with the Law?: Legitimacy and the Influence of Legal
Institutions’, British Journal of Criminology 52:6 (2012) 1051-1071, 1062-1064; Kroneberg et al., ‘Moral
Norms’, 263.
209
Tyler, ‘Psychological Perspectives’, 378.
210
Ibid., 383.
211
Rothe and Mullins, ‘Beyond the Juristic Interpretation’, 103.
204
51
Lastly, there seems to be a relationship between the certainty of legal sanctions, the perceived
legitimacy of the sanctioning institution and the willingness to engage in crime.212 A low certainty of
legal sanctions decreases the institution’s legitimacy: it can be said that it has a low performance
legitimacy. A lack of perceived legitimacy furthermore decreases the certainty of legal sanctions. When
a certain social group sees a legal institution as illegitimate, the group will diminish its assistance to
enforcement agencies, which offers the indicted person the opportunity to hide or flee. Examples of this
were seen in the former Yugoslavia. Men like Radovan Karadzic and Ratko Mladic were able to evade
arrest for a long time after they were indicted by the ICTY. Karadzic only got arrested in 2008,213 Mladic
in 2011.214 The support they had in the areas in which they took refuge, gave them the opportunity to
remain beyond the enforcement agency’s reach for a long time.215 As such, when an international
criminal court is lacking both a positive perceived legitimacy and a certainty of legal sanctions, its
deterrent effect will be minimized even more, and is almost negated.
In conclusion
Legitimacy plays an important role in moderating the deterrent effect of legal sanctions. When a person
perceives an institution to be legitimate, he will internalize its norms and values, more easily respect its
decisions and feel obliged to follow its rules. To attain audience legitimacy, an institution’s actions must
be procedurally fair and its norms and values must be shared to some extent by the broader public. It
cannot be perceived to be discriminatory. The lack of perceived legitimacy that troubles international
criminal tribunals is an important factor in explaining why some murderous leaders are not seeing them
as a proper restriction of behavior.
Rothe and Collins, ‘Pipe Dream’, 196-197.
Ellie Tzortzi, ‘Karadzic Arrested in Serbia, worked as doctor’, Reuters, (22 July 2008), available online at:
http://www.reuters.com/article/2008/07/22/us-warcrimes-karadzic-idUSL2196241820080722 (26 April 2013)
214
Peter Beaumont and Adam Gabbatt, ‘Ratko Mladic arrested, Serbian president confirms’, The Guardian, (26
May 2011), available online at: http://www.guardian.co.uk/world/2011/may/26/ratko-mladic-arrested-serbianpresident (26 April 2013).
215
See notes 213 and 214.
212
213
52
§1.3 Summarizing the findings of this Chapter
The analytical framework presented here is meant to act as a guide in explaining why rebel and state
leaders who commit mass atrocities usually do not seem to care about international legal sanction threats.
In the present contribution the analytical framework will be used to conduct two case studies. The first
studies the response of Slobodan Milosevic to the ICTY, the second Joseph Kony’s reaction to the ICC.
The structure of these case studies has been described in the introduction. This conclusion is meant to
give an organized overview of the most relevant findings that have been presented in this chapter. Table
1 summarizes the findings of §1.1, which are especially important in understanding the men’s decisions,
their motivation and their personalities. Therefore, in the case studies below, the behavior of Milosevic
and Kony will be analyzed by applying these findings.
Table 2 gives an overview of the most relevant criminological findings on deterrence, extralegal
sanctions, and legitimacy, which were presented in §1.2. These findings are important to understand the
relationship between the court and the person who is being indicted for the crimes he allegedly
committed. In describing the international criminal tribunals that were meant to deter Milosevic and
Kony from committing mass atrocities, a special emphasis therefore will be on the perceived certainty,
severity and celerity of the court’s legal sanctions, the social context which was issuing extralegal
sanction threats, and the way in which the legitimacy of these international legal sanctioning institutions
was perceived.
As this study now turns to the study of two of the most illustrious war criminals of the last few
decades, it is important to keep in mind that they were not ‘mad men’, nor were they fully rational actors,
only acting to maximize pleasure and minimize pain. In devising ways to stop them, the emphasis has
too often been on either extreme category. Often, the simple idea that the threat of legal prosecution
would be a disincentive strong enough to stop them, has given false hope to the proponents of
international criminal tribunals. And, to be blunt, has probably wasted innocent lives.216 Finally, it must
be stressed that, to give a meaningful account of what has happened and to adequately explain the acts
of Milosevic and Kony, it will be less important to give an account of what objectively happened, than
to try and explain how these individuals perceived these events, how they were filtered through their
referential framework and how they eventually formed their decision making process.
216
The genocide in Srebrenica was conducted after the ICTY was erected, and after both the ICTY and the
international community made it very clear that the perpetrators of mass atrocities would be held accountable for
their abhorrent acts. Clearly, Mladic and other Serbian commanders were not worried about these threats. More
than five thousand men were systematically executed, a horrific example of the impotency of international legal
sanction threats. The international unwillingness to intervene more forcefully and pinning their hopes on the
international tribunal, in this sense can be held responsible for the deaths of these men.
53
Table 1: Understanding the Man
Category
Rationality
Main
Question
How does
he make his
decisions?
Relevant factors
Computational
Difficulties
Cognitive biases
Emotions
Individual
Differences
Motivation
What
motivates
him?
Values
Important
points
Explains
imperfect
decisions
Information
processing is
systematically
biased
Emotions
shortcut
rational
considerations
People do not
make decisions
in the same
way
People act on
their values
Strength of
Engagement
Personality
Overcoming
obstacles
increases
engagement
strength
Acting in
When someone
accordance with
disseminates
own self-identity values they
demand action
Intrinsic/extrinsic People prefer to
motivation
act on intrinsic
motivation
How can we Big Five
Five
accurately
personality
assess his
traits that
personality?
predict certain
behaviors
ObserverAlso insights
report/self-report from political
data most
profiling
important
54
Psychological
stress increases
judgment errors
Loss aversion
--
Moods affect
judgment
Affective
feelings
Values, moral
norms, cultural
Imperatives, and
personality all
affect decision
making
Ideology as an
organized set of
values
--
--
--
--
--
--
Prejudice is
linked to low
Openness and
low
Agreeableness
--
Social
attitudes
moderate
links:
RWA/SDO
--
--
Moral
norms as
moderators
--
Table 2: The relationship between the court and the criminal
Category
Deterrence
Relevant Factors
Important points
Certainty/severity/celerity Only empirical
thought to have inverse
proof for certainty
relationship to crime rates
Experiential Effect
Risk sensitivity
Extralegal
sanctions
Social censure
Disapproval
coming from the
social group
Self-disapproval
Negative feeling
from offending
personal
values/norms
Formal
sanctioning
institutions
ineffective…
Inversion of
morality makes
extralegal
sanctions more
probable
The way the court
is perceived by
the wider
audience
Stronger effect than legal
sanctions, especially
when rule of law is
wanting
Potential offenders are
deterred from not
committing a crime
Legitimacy
Offender’s learn
from their
experiences with
the criminal
justice system
The extent to
which measures
are being taken to
avoid detection
and/or capture
Audience legitimacy
Procedural fairness
Interplay of legitimacy
and certainty
Being
procedurally fair
increases perc.
legitimacy
High perc.
certainty increases
perc. legitimacy
55
Severity/celerity
are important
theoretically
Offender also
updates his
information by
looking at peers
It is the potential
offender’s
perception that
matters, which is
not always
directly linked to
reality
--
Risk sensitive
offenders might
be among the
criminals that
are hardest to
deter
Can take the
form of
embarrassment
but also has
more violent
forms
--
--
And
illegitimate…
Trust in formal
sanctioning
institutions low
Group norms
that demand
crime
Violation leads to
extralegal
sanctions
Needs
consensus about
norms and
values
Dominant
narratives that
contradict the
court’s narrative
has negative
impact on
legitimacy
Court must
respect social
status of indictee
Court cannot be
perceived as
discriminatory
Low perc.
legitimacy
decreases
certainty
--
--
--
Chapter 2: Slobodan Milosevic and the Yugoslav wars
Slobodan Milosevic was one of the most notorious characters of the 1990s. His policies brought down
a nation. The wars he ignited ended the lives of hundreds of thousands of people, wounded many more,
and caused an exodus of millions of refugees from the former Yugoslavia.1 Furthermore, it is alleged
that during these wars, he was responsible for war crimes, crimes against humanity, grave violations of
the Geneva Convention of 1949, and genocide. The nicknames he collected during his years in power,
range from ‘the slickest con man in the Balkans’ to ‘the Peace Maker of Dayton’; from ‘the Butcher of
Belgrade’ to ‘the savior of Serbia’.2 This colorful personality is the subject of this chapter. By applying
the analytical framework presented above, it will analyze Milosevic’s rationality, his motivation, his
personality, the efforts of the International Criminal Tribunal for the former Yugoslavia (ICTY) to stop
him, and the way in which Milosevic reacted to these efforts. To do so, the chapter is structured into a
number of paragraphs. First, by giving a short overview of the conflict that erupted in the former
Yugoslavia in the beginning of the 1990s, and Milosevic’s role in this conflict, the context of Milosevic’s
crimes is sketched. The second paragraph will portray Milosevic in further depth, and analyze his
rationality, motivation, and personality. Third, to understand the ICTY’s fruitless efforts to stop the
atrocities being committed in the former Yugoslavia, the third paragraph scrutinizes this institution by
considering how the factors that were summed up in the analytical framework above, affected its
operations in the former Yugoslavia. Thus, this paragraph investigates the interaction between the court
and the criminal, between the ICTY and Slobodan Milosevic. Together, these paragraphs will attempt
to explain why prosecution threats being issued by the ICTY did not deter Slobodan Milosevic from
committing serious international crimes.
§2.1 The conflict in the former Yugoslavia
Before its violent disintegration in the 1990s, the Federal Socialist Republic of Yugoslavia/Socialist
Federal Republic of Yugoslavia3 was a relatively stable multi-ethnic, communist federation. A result of
1
The exact number of victims in the Yugoslav wars is still unknown. Moreover, the exact involvement of Serbia
and its president, Milosevic, is a matter of enduring controversy amongst historians. However, there seems to be
some agreement that Milosevic’s policies were for a large part responsible for the violence following
Yugoslavia’s break-up. Although Milosevic has always denied the involvement of Serbs in the wars in Croatia
and Bosnia, claiming that they were ‘civil wars,’ the historical record, amplified by evidence from the ICTY’s
trial against Milosevic, completely contradicts this claim. See: Judith Armatta, ‘Historical Revelations from the
Milošević Trial’, Southeastern Europe 36:1 (2012) 10-38, 35-36; Norman Cigar and Paul Williams, Indictment
at the Hague: the Milosevic regime and crimes of the Balkan War (New York: New York University Press,
2002) 19-33.
2
Lenard J. Cohen, Serpent in the Bosom: the Rise and Fall of Slobodan Milošević (Boulder: Westview Press,
2001) 65; Jerrold M. Post and Lara K. Panis, ‘Tyranny on Trial: Personality and Courtroom Conduct of
Defendants Slobodan Milosevic and Saddam Hussein’, Cornell International Law Journal 38 (2005) 823-836,
824.
3
The federation’s name was later changed to the Socialist Federalist Republic of Yugoslavia (SFRY). The namechange was suggested by Milosevic in 1963, while he was still an unremarkable law-student. According to him,
56
the break-up of the Austro-Hungarian and Ottoman empires, Yugoslavia was created by the Versailles
Treaty in the aftermath of World War I. It spent its first three decades as a kingdom, uniting the Southern
Slav (or Yugoslav) people living in Serbia, Bosnia, Croatia, Montenegro, and Macedonia.4 Although
belonging to the same race and speaking the same language – Serbo-Croatian – Yugoslavia’s inhabitants
differed from each other in culture, ethnicity, and religion: there were Catholics, orthodox Christians,
and Muslims; Serbs, Croats, Bosnians, Macedonians, Albanians, and Slovenes. Most identified
themselves more with their own ethnic group, than with some sort of pan-Slavic ideal.5 Especially in
Kosovo, a Serbian province, a long history of conflict fuelled tensions between ethnic Albanians and
ethnic Serbs. Although they were in the minority, it was the Serbs who ruled Kosovo.6 Throughout
Yugoslavia, the Serbs saw themselves as “a distinct nation heading a multiethnic state”, who deserved
the predominant position in the state structure.7
This all changed when, in 1941, Yugoslavia was invaded and occupied by Nazi Germany. 8 In
Croatia, a puppet-state emerged, headed by the fascist Ustasha party. The Independent State of Croatia
(NDH), as it was called, implemented a policy of ethnic cleansing against its more than two million
Serbian inhabitants, massacring tens of thousands and deporting many more. 9 This highly polarized
ethnic situation left a legacy of anxiety and distrust. Complicating the situation even more was the civil
war between the two groups that opposed the German occupation. The Partisans, communist resistance
fighters under the leadership of Josip Broz Tito, fought against the royalist, anti-communist Chetniks.10
Tito emerged victorious and founded the Federal Socialist Republic of Yugoslavia (FSRY). Tito hoped
to bury the Second World War’s “historical record of ethnic bloodletting”,11 by giving each ethnic group
its own governing institutions – setting up what Jack Snyder calls ‘ethnofederalism’12 – and propagating
the new credo ‘Brotherhood and Unity’.
the new name would better emphasize the socialist aspect of the federation. See: Slavoljub Djukic, Milosevic and
Markovic: A Lust for Power (Montreal & Kingston: McGill-Queen’s University Press, 2001) 9.
4
At first, its official name was the “Kingdom of Serbs, Croats, and Slovenes.” Only in 1929 was it named the
“Kingdom of Yugoslavia.” However, even before 1929, the name Yugoslavia was widely in use. See: Cohen,
Serpent in the Bosom, 10.
5
Adam leBor, Slobodan Milosevic: Biografie (Amsterdam: Uitgeverij Balans, 2002) [translated to Dutch from
Milosevic – A Biography (London: Bloomsbury, 2002)] 20.
6
Cohen, Serpent in the Bosom, 10-12.
7
Jack Snyder, From Voting to Violence: Democratization and Nationalist Conflict (New York: W.W. Norton &
Company, 2000) 207.
8
LeBor, Slobodan Milosevic, 20.
9
Ibid., 22; Snyder, From Voting to Violence, 208.
10
LeBor, Milosevic, 22-23; Louis Sell, Slobodan Milosevic and the Destruction of Yugoslavia (Durham: Duke
University Press, 2002) 12.
11
Ibid., 33.
12
Snyder, From Voting to Violence, 208-210.
57
Slobodan Milosevic’s formative period and capitalist years, 1941-1984
In the year that Nazi-Germany invaded Yugoslavia, on the 20th of August 1941, Slobodan Milosevic
was born in the small Serbian town of Pozarevac.13 His parents were both teachers of Montenegrin
descent: Svetozar, his father, taught Russian and literature; his mother Stanislava was a teacher at a
lower school. He also had an older brother, Borislav. The capture of Pozarevac by the Partisans in the
winter of 1944, marked the onset of Slobodan’s life in Titoist Yugoslavia, which was to last until 1980.
Tito was, in many ways, inescapable. Although Tito had abandoned Stalin’s Soviet Union in 1948 –
embarking on a somewhat more liberal, capitalist course14 – he was no stranger to personality cults.
Adoration of the authoritarian Tito penetrated Yugoslav society, and marked Milosevic’s high schoolyears.15 In these years, Milosevic seemed to be somewhat isolated. He did not have many friends, did
not like sports, and was known mostly for always sitting in front of the class wearing his white-shirtand-tie. Yet, in 1958 he met the love of his life, Mirjana Markovic. Mirjana, born in a Partisan hide-out
in the midst of communist resistance during World War II, was a descendant of a well-known and wellrespected communist family in Pozarevac. Mirjana’s mother, Vera Miletic, died under mysterious
circumstances shortly after giving birth. According to the dominant narrative she was executed by a
communist firing squad for betraying her communist comrades. For this reason, Mirjana’s father, Moma
Markovic, did not formally accept his daughter until she was sixteen.16 Mirjana and Slobo – as she
affectionately called him – were extremely attracted to each other. In Pozarevac, they were quickly
known as ‘Romeo and Juliet II of Pozarevac’.17 Mirjana saw something in Milosevic. It is said that
Mirjana once pointed to one of the many portraits of Tito, which in Titoist Yugoslavia adorned every
public building, saying: “That’s where my Slobo’s picture will be one day.”18 Soon, he would become
the vessel for her political ambitions.
After high school, Slobodan went to law school in Belgrade. Here, his life was filled with both
major career steps and family tragedies. To start with the first, one of Milosevic’s most important
political choices was to befriend Ivan Stambolic – the promising, intelligent, and well-connected son of
Petar Stambolic, one of the most prominent Partisan leaders of Serbia. Through Stambolic, he secured
various functions in the student association of the communist party. In these functions, he displayed the
typical characteristics of a communist apparatchik. Noticed for his rigid adherence to the party line and
his “genius for party politics”, he was also condescending to his inferiors and a “toady” to those above
him.19 Although he did not excel with his grades, he ensured a promising future for himself through his
loyalty to Stambolic. He graduated from college in 1964. A year before, when Milosevic was 21, his
13
LeBor, Milosevic, 17.
Sell, The Destruction of Yugoslavia, 21.
15
Ibid., 18-19.
16
Laura Silber, ‘Milosevic Family Values’, New Republic 221:9 (1999) 23-28, 24.
17
Cohen, Serpent in the Bosom, 46.
18
Djukic, Milosevic and Markovic, 11.
19
Sell, The Destruction of Yugoslavia, 20.
14
58
father committed suicide. Svetozar had already abandoned Stanislava in 1947 – reportedly over
ideological differences: Stanislava embraced communism, while Svetozar remained deeply religious –
after which Milosevic had had little contact with him. Milosevic did not bother to go to his father’s
funeral, and did not seem to be particularly shocked by it.20
In the decades after 1960, while Yugoslavia was reforming its economy according to marketoriented, Western guidelines, Milosevic was making his career in the business and banking world.
Stambolic made sure that Milosevic would succeed him in the functions he left behind. In this way,
Slobodan became director of the Belgrade firm Technogas and, in 1978, head of the most important
financial institution of the Balkans, the Udruzena Beogradska Banka (UBB). 21 During his time at the
UBB, Milosevic fashioned himself into a Western-styled capitalist banker. On his numerous trips to the
United States, he became fluent in English, made friends with some of the world’s most prestigious
bankers, and developed a strong affection for the culture of the United States.22 Milosevic’s capitalist,
internationalist outlook was congruent with Yugoslavia’s outlook in this period in general. His
international contacts and reputation as a capitalist cosmopolitan would be of great use in the decades
that followed. Although Yugoslavia was still ruled by an authoritarian one-party oligarchy, and its
companies were often state-run, the country increasingly tried to become part of the West.23 In 1974, to
keep off demands for democratization, reform the economy, and reduce ethnic tensions, Tito introduced
a new constitution which turned the Yugoslavian federation into “a decentralized confederation in all
but name”.24 Apart from its control over the army, the federal state was stripped of almost all authority.
Most power was redistributed to the republics, which were highly ethnic in orientation. Kosovo and
Vojvodina, part of Serbia but already possessing significant self-rule, in effect became autonomous
republics within the greater Serbian republic.25 Yet, Tito did not manage to solve the nationalities
problem, nor did he modernize the one-party communist rule.26
Just like his period in law school, Milosevic’s ‘capitalist period’ was marked by the suicide of
one of his parents. His mother Stanislava, the woman he loved the most next to Mirjana, hung herself in
1973.27 Unlike the death of his father, the death of his mother shocked Milosevic. As a small boy he was
LeBor, Milosevic, 49. According to Laura Silber, Svetozar “shot himself in the head upon learning that a
student of his had committed suicide after receiving a bad grade.” See: Silber, ‘Milosevic Family Values’, 25.
21
LeBor, Milosevic, 67.
22
Ibid., 65-79.
23
Although the country witnessed a significant economic boom in this period, the gap between the developed
regions – such as Slovenia – and the less developed region – especially Kosovo – actually increased. Cohen,
Serpent in the Bosom, 17-27; Sell, The Destruction of Yugoslavia, 22.
24
Ibid., 23.
25
Snyder, From Voting to Violence, 209-210.
26
These issues are frequently analyzed as Tito’s ‘biggest mistakes’. See: Sabrina P. Ramet, ‘Review Essay: In
search of the ‘real’ Milosevic: new books about the rise and fall of Serbia’s strongman’, Journal of Human
Rights 2:3 (2003) 455-466, 457-458. Here she refers to: LeBor, Milosevic, 9-10; Sell, The Destruction of
Yugoslavia, 19.
27
Laura Silber once again, gives a tendentious reason for her suicide: “Stanislava had traveled to her son’s
Belgrade apartment to take care of her grandchildren, but, when she arrived late, Mira slammed the door in her
face. Hours later, Stanislava was found dead.” See: Silber, ‘Milosevic Family Values’, 25. Strangely however,
20
59
smothered by her, but after graduating from college they saw each other less and less. To some extent,
this was because of the influence of Mirjana, who was not keen on letting other women in Milosevic’s
life.28 Meanwhile, the relationship between Mirjana and Slobo remained powerful as ever. During
Milosevic’s college years and his subsequent ‘capitalist’ period, Mirjana worked on her academic career.
In 1979, she received her PhD in sociology at the state university in Nis and quickly became a professor
of the same discipline at the University of Belgrade.29 In her work, she showed herself to be a staunch
defender of orthodox communism. She insisted on being called ‘comrade’ and was the founder of two
communist parties in the 1990s.30 This was partly caused by her obsession with the legacy of her mother,
Vera Miletic. Mirjana worked hard to prove that her mother had not betrayed her comrades. To support
her cause, she took over her mother’s war name – Mira – and imitated her mother’s habit of wearing a
red rose in her hair. The fact that her husband was working to promote capitalism in Yugoslavia,
fraternizing with communism’s arch-enemies – such as the Wall Street bankers – did not seem to bother
her. She was very much her own woman: for example, she did not change her last name after marrying
Milosevic in 1965. Yet the bonds between Markovic and Milosevic only became stronger and stronger.
Markovic gave birth to their daughter Marija in 1965, and in 1974 their son Marko was born.31 As
parents, they spoiled their kids, giving them everything they wanted and more. In the relationship,
Milosevic was, as ever, clearly Markovic’s inferior. Markovic saw her PhD as a sign of her intellectual
superiority. Milosevic accepted this and seemed to garner to her every need. This dominance of
Markovic over Milosevic only increased when Milosevic entered the political fray.32
Milosevic’s first political years: Failing Titoism, emerging nationalism, 1984-1987
In 1984, when Ivan Stambolic resigned his position as head of the Belgrade city organization to become
head of the Serbian League of Communists, Milosevic moved in behind him. This put him at the center
of power in the federation’s capital: Milosevic’s political career now began in earnest.33 However,
Yugoslavia’s state system was crumbling. The rise of nationalism, together with economic crises and a
failure of the existing state institutions to deal with these problems, eroded support for the state elite.
When Tito died in 1980, he left behind a state structured along ethnofederal lines, with republics that
Silber says she committed suicide in 1994. I did not find this date corroborated in any other sources. According
to LeBor, this happened in 1973; according to Sell, in 1972. They also give an alternative reason for the suicide
of Stanislava: she might have felt forsaken after both her sons and her husband had left her alone in Pozarevac.
Cf.: LeBor, Milosevic, 61; Sell, The Destruction of Yugoslavia, 16.
28
Ibid.
29
According to Silber, Mirjana’s PhD would not exactly pass the test of any Western university. Moreover, she
implies that Mirjana only landed her job as a professor because she was Milosevic’s wife. Silber, ‘Milosevic
Family Values’, 25.
30
Louis Sell, ‘Slobodan Milosevic: A Political Biography’, Problems of Post-Communism 46:6 (1999) 12-28,
22.
31
Cohen, Serpent in the Bosom, 48.
32
This is why Slavoljub Djukic coined the oft-quoted phrase that Slobodan Milosevic cannot be properly
understood without first understanding his wife. Djukic, Milosevic and Markovic, xii.
33
Sell, ‘A Political Biography’, 21.
60
were increasingly occupied with their own interests, disregarding those of the federal Yugoslav state.34
Communist officials desperately sought ways to regain support from Yugoslavia’s population. Many of
them chose to ride on the powerful current of the nationalist sentiments that swept the nation. By doing
so, they hoped to “reconcile popular politics with continued authoritarian leadership”.35
Slobodan Milosevic was one of these officials. After becoming the head of the Serbian
Communist Party – he replaced Stambolic who became President of Serbia36 - Milosevic first further
consolidated his power by removing most of the communist officials that opposed him, replacing them
with a group of loyal allies which became known as the ‘Small Politburo’.37 During his rise to power in
the communist party, Milosevic distinguished himself by his apparent belief in communism and his fight
against ‘counter-revolution’ – the communist term for nationalism –, with some calling him a “good
communist”.38 However, it was his nationalist rhetoric that caused his rise to prominence. In April 1987,
Stambolic sent him to calm demonstrators in the small town of Kosovo Polje.39 This fateful decision
changed the course of Milosevic’s career in significant ways. At that time, riots by ethnic Serbs plagued
Kosovo. When Slobodan met with communist officials in the local House of Culture on the 24th of April,
a Serb crowd stormed the building, pelting the cordon of policemen with rocks, who responded by
beating the Serbs back with their clubs. When Milosevic came out to assess the situation, he was visibly
shaken. After an old man begged him to stop the beatings by the police, he muttered “you will not be
beaten again”. In his speech to the crowd, he upped the ante: “[Y]ou must stay put. This is your land.
[…] Yugoslavia will disintegrate without Kosovo. Yugoslavia and Serbia will not give it away!”40
Milosevic’s friends, especially in the media, were quick to fashion his actions on this day into a true
Milosevic myth, portraying him as the hero of the Serbs, the savior of Kosovo.41 Before 24 April he was
a typical communist apparatchik. When he came back he refashioned himself as a Serbian nationalist,
aware of the power of the crowd and the potential of Serb nationalism for the acquirement of power.
Nationalism and the break-up of Yugoslavia, 1987-1991
With his newfound popular support, Milosevic moved against the communist state structure. On 23
September 1987, during the 8th Plenary Session of the Communist Party of Serbia, Milosevic got rid of
34
Sell, The Destruction of Yugoslavia, 22-23; Snyder, From Voting to Violence, 208.
Snyder, From Voting to Violence, 210-213.
36
Cohen, Serpent in the Bosom, 55-56.
37
Sell, ‘A Political Biography’, 21.
38
Cohen, Serpent in the Bosom, 56; Djukic, Milosevic and Markovic, 159.
39
Kosovo at that time was an autonomous region in the greater Serbian republic. As such, Kosovo fell under the
authority of the Serbian republic. Stambolic, in his capacity as President of Serbia, would also have been a
logical choice to assess and deescalate the situation. However, Sell reports that Stambolic “had spoken at a
similar protest meeting in Kosovo the previous year and so, to his later regret, sent Milosevic, who had long been
his protegé”. See: Sell, The Destruction of Yugoslavia, 2.
40
Djukic, Milosevic and Markovic, 17.
41
Snyder, From Voting to Violence, 214-215.
35
61
almost all of his communist opponents, one of whom was his long-time ally Ivan Stambolic.42 The last
years of the 1980s were used by Milosevic to further increase his popularity and consolidate his power.
Nationalist propaganda, espoused by the Milosevic-controlled media and Serbian intellectuals,
significantly aided him in his pursuit, and, by whipping up images of Serbian victimization and
inequality, created a climate for ethnic conflict.43 One of the most powerful manifestations of the rise of
Serbian nationalism in the 1980s was the xenophobic Memorandum of the Serbian Academy of Sciences
and Arts (SANU) published in September 1986, which called for an end to the ‘genocide’ by Kosovar
Albanians of the Serbian people in Kosovo.44 Feelings of victimization like these had dominated Serbian
nationalism since the 1389 battle of Kosovo Polje, in which according to Serbian myth the Serbs made
a heroic stand for Western civilization against the Ottoman invaders.45 The defeat the Serbs suffered in
this battle allegedly introduced a period of Ottoman repression and Croatian persecution during the
Second World War did much to reinforce these feelings of victimization.46 Milosevic promised to put
an end to the (perceived) suffering of the Serbs and ensure Serbian dominance within the Yugoslav
federation. During the 600-year anniversary of the battle of Kosovo Polje, in Gazimestan, Milosevic
played up his image as the Serbs’ national hero. He addressed a crowd of over a million people, making
an ominous statement, televised live throughout the nation: “Six centuries later, we are in battles again.
And facing new ones. They are not armed battles, though such battles should not be excluded yet.”47
Milosevic tried to ensure the dominance of Serbia within the Yugoslav federal structure, by
organizing the so-called anti-bureaucratic revolutions – mass rallies attended by (mostly Kosovar) Serbs
– against his political opponents. These were very effective in Kosovo, Montenegro, and Vojvodina.
Controlling four of the eight votes of the Yugoslav presidency, he needed only one more vote to change
the 1974 constitution to establish a Serbian dominance under his leadership.48 However, Milosevic’s
nationalism in Serbia had sparked counter-nationalisms across Yugoslavia. Men like Croatia’s Franjo
Tudjman and Slovenia’s Milan Kucan rose to power over fears of Milosevic’s ambitions of creating a
42
Cohen, Serpent in the Bosom, 67-70; Djukic, Milosevic and Markovic, 22-24.
Sell, The Destruction of Yugoslavia, 111; Snyder, From Voting to Violence, 213-214.
44
LeBor, Milosevic, 109-113; Snyder, From Voting to Violence, 212. For the text of the Memorandum (in
English), see: Serbian Academy of Arts and Sciences, ‘Memorandum 1986 (the Greater Serbian Ideology’, (24
September 1986), available online at:
http://www.trepca.net/english/2006/serbian_memorandum_1986/serbia_memorandum_1986.html (21 October
2013).
45
For the way in which this mythmaking influenced the history of Serbia, see: Branimir Anzulovic, Heavenly
Serbia: From Myth to Genocide (New York: New York University Press, 1999).
46
Cohen, Serpent in the Bosom, 5, 81. For the role of previous feelings of victimization in the causation of
genocide, see: Alex Alvarez, ‘Destructive Beliefs: Genocide and the Role of Ideology’, in: Alette Smeulers and
Roelof Haveman (eds.), Supranational Criminology: Towards a Criminology of International Crimes (Antwerp:
Intersentia, 2008) 213-231, 222.
47
Agneza Bozic-Roberson, ‘Words Before the War: Milosevic’s Use of Mass Media and Rhetoric to Provoke
Ethnopolitical Conflict in Former Yugoslavia’, East European Quarterly 38:4 (2005) 395-408, 402. With this
speech Milosevic established himself as the new Prince Lazar, the Serbian prince who heroically defied the
Ottoman empire six centuries earlier. See: LeBor, Milosevic, 165-170.
48
Sell, ‘A Political Biography’, 14.
43
62
Greater Serbia.49 When Milosevic tried to use the same tactics he used in other republics in Sloevnia,
announcing a ‘meeting of truth’ in the Slovenian capital Ljubjana, Kucan closed the borders, mobilized
the police and threatened to use force against any Serbs who dared to show up. On the 14th Congress of
the League of Communists of Yugoslavia, in January 1990, the Slovenes decided they had enough and
walked out, initiating the collapse of the communist party which had ruled Yugoslavia for more than
forty years.50 These events precipitated Yugoslavia’s disintegration and laid the groundwork for the
ensuing Croatian and Bosnian wars. Milosevic, having failed to become Yugoslavia’s ‘second Tito’,
adapted a new strategic goal: unite all Yugoslav Serbs in a Greater Serbia under his personal rule.51
The political upheaval that followed the Slovenian walk-out had serious consequences for the
Yugoslav federation. In the months that followed, Slovenia’s freshly elected nationalist leaders made
great steps towards more sovereignty. These steps culminated in a January 1991 plebiscite which called
for independence. Tudjman similarly made demands of greater sovereignty for Croatia. At the same
time, he took steps that marginalized Serbs in Croatia. Symbols were adopted that had also been used
by the Ustasha during World War II, evoking powerful memories among Croatian Serbs of fascist
massacres.52 Bosnia’s nationalist parties achieved a landslide victory as well, leading to a nationalist
‘partnership in power’, with Croats, Serbs, and Muslims sharing the government.53 In Serbia, Slobodan
Milosevic got overwhelming support for his newly created, moderately nationalist Socialist Party of
Serbia (SPS).54 The increasing polarization between Yugoslavia’s republics ended in the 25 June 1991
declarations of independence by Slovenia and Croatia. The Yugoslav National Army (JNA) did not
accept this, however, declaring war on Slovenia on the 27th of June. But the battle was over rather
quickly, with a humiliating retreat by the JNA formalized by the European Community (EC)-negotiated
Brioni Agreement of 7 July 1991.55
The eruption of ethnic conflicts in Bosnia and Croatia, 1991-1992
The civil conflict breaking out in Bosnia and Croatia, both inhabited by large minorities of Serbs, saw
much heavier fighting. The Bosnian and Croatian Serbs demanded independence and wanted to join the
Serbian-Montenegrin republic.56 In Serbian Croatia, Radio Knin espoused racist propaganda, inflaming
the tense ethnic situation in the republic.57 Although Milosevic has always denied any Serbian
involvement in the Croatian and Bosnian wars, declaring them ‘civil wars’, the involvement of Serbia
and Milosevic himself was clear. Starting in 1991, Serbian separatists living in Croatia, supplied with
49
Snyder, From Voting to Violence, 212-213.
Sell, ‘A Political Biography’, 14.
51
Sell, The Destruction of Yugoslavia, 108.
52
Ibid., 115.
53
Neven Andjelic, Bosnia-Herzegovina: The End of a Legacy (London: Frank Cass, 2003) 188-202.
54
Cohen, Serpent in the Bosom, 120.
55
Alastair Finlan, The Collapse of Yugoslavia 1991-1999 (Oxford: Osprey Publishing, 2004) 17.
56
Sell, The Destruction of Yugoslavia, 111.
57
This radio station was dominated by Milosevic. See: Finlan, The Collapse of Yugoslavia, 23.
50
63
weapons by Milosevic, used armed force to carve out new borders in the Krajina, They removed nonSerbs from Serbian majority areas, implementing a policy of ethnic cleansing on a scale not seen in
Europe since the Second World War.58 Tudjman did not accept the Serbian separatism and ordered his
troops to retake the towns. When JNA troops got mixed in the fighting as well, full-scale war broke out.
The JNA, although officially part of the Yugoslav federal structure, was dominated by officers who
were appointed by Milosevic, and was thus a proxy for Serbian interests.59 In the late spring of 1991,
fighting intensified in the region known as Eastern Slavonia. The brutal siege of Vukovar became one
of the prime examples of the savagery of the war in the former Yugoslavia. The brutality was made even
worse by the increasing role of extremist paramilitary groups – such as Arkan’s Tigers –, which had
strong links to Milosevic in Belgrade. Well-equipped, they were especially responsible for the ethnic
cleansing that took place.60
In 1992, similar events unfolded in Bosnia. Bosnia’s government of Alija Izetbegovic wanted
greater sovereignty from the centralized Yugoslav federal structure. Getting nothing from the now
Serbian-dominated federal government,61 he declared his independence from Yugoslavia in the spring
of 1992, leaving the Yugoslav federation to consist of nothing but the Serbian republic, Montenegro,
and Macedonia. The Bosnian declaration of independence provoked intervention by the JNA, and a
secessionist uprising by the republic’s Serb minority.62 Under the leadership of Radovan Karadzic, and
supplied by Milosevic’s Serbia, the Bosnian Serbs established an independent republic called Republika
Srpska, with a ‘capital’ in Pale.63 Their military organization enabled the Bosnian Serbs to gain large
swaths of territory, especially in the first months of fighting, crushing the unprepared and unorganized
Bosnian troops.64 Just like the Serbs in Croatia, the Serbs here put much effort into ethnically cleansing
their new republic. Taking town after town, burning villages and murdering non-Serbs, they undertook
a siege of Bosnia’s ethnically mixed capital Sarajevo. This was to be one of the longest and most cruel
sieges of the Yugoslav wars. Taking position on the surrounding hills, Bosnian Serbs randomly sniped
innocent civilians and shelled civilian targets, putting the residents of Sarajevo in a state of terror which
would last for three years.65 The Bosnian war also saw the reinvention of concentration camps, which
58
James Gow, The Serbian project and its adversaries: a strategy of war crimes (London: C. Hurst, 2003) 145.
Ibid., 51-89.
60
Finlan, The Collapse of Yugoslavia, 28. For an account of the notorious Arkan, see: Christopher S. Stewart,
Hunting the Tiger – the Fast Life and Violent Death of the Balkans most Dangerous Man (New York: Thomas
Dunne Books, 2007). Another well-known group was the Scorpions. For them, see: Samuel Tanner and
Massimiliano Mulone, ‘Private Security and Armed Conflit: A Case Study of the Scorpions during the Mass
Killings in Former Yugoslavia’, The British Journal of Criminology 53:1 (2013) 41-58.
61
Since the Croats and Slovenes had left, Milosevic now controlled four of the six votes.
62
An agreement between Tudjman and Milosevic seems to have foreseen these events. In March 1991 they
agreed at Karadjordjevo to partition Bosnia into Croatian and Serbian parts, leaving the Muslim Bosniacs, the
region’s largest ethnic group, with no territory of their own. See: Finlan, The Collapse of Yugoslavia, 37.
63
Gow, The Serbian Project, 150.
64
Finlan, The Collapse of Yugoslavia, 39-40.
65
LeBor, Milosevic, 302-317. For a military history of the siege of Sarajevo, see: Curtis S. King, ‘The Siege of
Sarajevo, 1992-1995’, in: William G. Robertson and Lawrence A. Yates (eds.), Block by Block: The Challenges
of Urban Operations (Fort Leavenworth: U.S. Army Command and General Staff College Press, 2003) 235-290.
59
64
the Serbs used to imprison non-Serbs they had collected during their ethnic cleansing campaigns. The
most notorious of these camps was at the north-west Bosnian town of Omerska, in which thousands of
non-Serbs had to endure systematic beatings, rapes, and want-on killings.66 Further aggravating the
situation in Bosnia was the outbreak of a savage civil war between Bosnian Croats and the Muslim
population in October 1992. Just as Bosnia’s Serbs were supported by Serbia’s Milosevic, Bosnia’s
Croats were supported by Tudjman’s Croatia.67
International response, continued fighting and the role of Milosevic, 1991-1994
The response of the international community during these crises was, although well-intentioned, often
weak and ineffective. The Brioni Agreement, which was negotiated by the EC and ended the war
between Slovenia and Yugoslavia, gave false hope that the Western world would be able to manage the
violence by diplomacy alone.68 The quick recognition of the independence of Slovenia, Croatia, and
Bosnia probably only worsened the situation in the former Yugoslavia. The recognitions were an easy
target for Milosevic’s propaganda machine, which portrayed them as evidence that the international
community treated the Serbs unfairly.69 The United Nations was quick to respond with sanctions against
Serbia, recognizing the republic’s involvement in the Croatian and Bosnian wars. Moreover, in February
1992, the Security Council sanctioned a deployment of 14.000 UNPROFOR (United Nations Protection
Force)-peacekeepers to Croatia.70 Apart from sending peacekeepers, U.N. the May 1993 Security
Council Resolution 827 established the International Criminal Tribunal for the former Yugoslavia,
which was meant to deter further atrocities by prosecuting those most responsible for them. 71 Starting
in early 1993, six ‘safe areas’ were created in Bosnia, where the U.N. troops were mandated to protect
them “by all necessary measures”.72 All of these measures amounted to a significant commitment by the
international community to end the conflict in the former Yugoslavia. However, there was a general
unwillingness to become involved in a large-scale military conflict. Countries like the United States and
Great Britain felt little for a costly military enterprise in a region where they felt they had no core
For a personal and dramatic account of the siege of Sarajevo, see: Zlata Filipovic, Zlata’s Diary – A Child’s Life
in Sarajevo (London: Puffin Books, 1995).
66
Gow, The Serbian Project, 134-138.
67
Charles R. Schrader, The Muslim-Croat Civil War: A Military History, 1992-1994 (College Station: Texas
A&M University Press, 2003) xvii.
68
Finlan, The Collapse of Yugoslavia, 22-23.
69
Sell, The Destruction of Yugoslavia, 154.
70
The forces deployed under UNPROFOR had only a very limited mandate. They were not to fire unless fired
upon, and were supposed to remain impartial in the conflict zone. It is important to stress here, that they had “a
purely humanitarian role in which the soldiers in blue helmets could only try and encourage peace, not enforce
it”. UNPROFOR eventually swelled to over 30.000 troops in 1994, deploying to Croatia, Macedonia, and
Bosnia. See: Finlan, The Collapse of Yugoslavia, 29. For a reproduction of the Rules of Engagement, see: Ibid.,
32.
71
For the Resolution’s text, see: United Nations Security Council, ‘Resolution 827 (1993)’, (25 May 1993),
available online at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/827(1993) (30 September
2013).
72
These six safe areas were Bihac, Gorazde, Srebrenica, Sarajevo, Tuzla and Zepa. See: Finlan, The Collapse of
Yugoslavia, 48-49.
65
interests at stake. A limited mandate for the peacekeepers, together with this general reluctance to
become involved, made sure that the international involvement in the Yugoslav wars initially became a
failure.73
In the years after 1991, Milosevic established what is often called a ‘soft dictatorship’ in
Serbia.74 With his extended control over the media and his cronies in place in the government’s and
economy’s top positions, his leadership was almost uncontested. Not only was the opposition weak and
crippled by in-fighting, the republic’s inhabitants actually favored Milosevic. Although his nationalist
populism somewhat decreased after he had comfortable control over power, many Serbs still saw in
their ‘Slobo’ a true defender of the Serbs, someone who would not give up on the Serbs’ rights in Kosovo
and who would not give in to external pressures targeting the Serbs. As such, Milosevic’s propaganda
found a fertile soil among the Serbian population.75 By integrating a powerful economic, intellectual
and state elite, making them his clients, Milosevic consolidated his hold on power even further. His
wife’s political party, the hardline communist Yugoslav United Left (JUL), played an important role in
this process. Those who profiteered from the Bosnian and Croatian wars, what Laura Silber calls “a
rabble of war profiteers, smugglers, and criminals”, joined her party, understanding that Mira’s
connection to Slobodan was crucial in the acquirement of government contracts or important political
and military decisions.76 Although JUL had very little political support, it was thus to become one of the
most powerful political parties in Milosevic’s Serbia.
In the meantime, Milosevic kept insisting that Serbia had nothing to do with the fighting in
Bosnia and Croatia. Even when coffins started arriving from Bosnia on a daily basis, he declared that
“no Serbs took part in the fighting”. Still, he supplied the Croatian and Bosnian Serbs with weapons,
money, training, and even troops. Moreover, the Serb-dominated JNA was an important part of
Milosevic’s strategy in Bosnia and Croatia. Even before the republics declared their independence, JNA
troops were supplying Bosnian and Croatian troops with arms. When the JNA disbanded, its troops
simply went to the Serbian side.77 Furthermore, intercepted phone records, presented at his ICTY trial,
clearly show him orchestrating coordinated operations with the Serbs in Croatia and Bosnia.78 However,
there is some discussion as to the amount of influence Milosevic had over the Croat and Bosnian Serbs.
The paradox is that, on the one hand, he declared himself powerless over the Croatian and Bosnian
Serbs. When he was accused of planning with them and supporting their operations, he claimed he could
not stop them and that he had no influence over them. On the other hand, however, Milosevic constantly
73
Ibid., 40.
Cohen, Serpent in the Bosom, 97; Sell, The Destruction of Yugoslavia, 193.
75
Snyder, From Voting to Violence, 217-218. On this, see also: Takis S. Pappas, ‘Shared culture, individual
strategy and collective action: explaining Slobodan Milosevic’s charismatic rise to power’, Southeast European
and Black Sea Studies 5:2 (2006) 191-211; Stacy Sullivan, ‘Milosevic’s Willing Executioners’, New Republic
220:19 (1999) 26-32.
76
Silber, ‘Milosevic Family Values’, 26.
77
Gow, The Serbian Project, 75-79.
78
Josip Glaurdic, ‘Inside the Serbian War Machine: The Milosevic Telephone Intercepts’, East European
Politics and Societies 23:1 (2009) 86-104, 94-97.
74
66
propagated himself as the go-to man for a peace deal in the Balkans, for which he apparently would
have enough influence with this ethnic brethren. Yet, his control was not always as direct and complete
as he might have wished.
This became clear when the international community increased its commitment to a negotiated
end to the conflict. After a series of failed peace efforts, Special Envoy for the Secretary-General of the
United Nations Cyrus Vance and EC-delegate David Owen managed in January 1993 to have their peace
plan – which would partition Bosnia into ten ethnic provinces with a decentralized government structure
– signed by the conflict’s major actors, including Milosevic and Karadzic. It was mostly Milosevic who
conducted the negotiations and he practically forced Karadzic to sign the peace deal. However, the
Bosnian Serbs disliked the plan and, despite strong pressure from Milosevic, rebuked it during a Pale
assembly in May.79 It turned out that the Bosnian Serbs were not merely puppets in Milosevic’s hands.
They were autonomous actors who, although with significant support from Serbia, were still capable of
making their own decisions. Milosevic had much leverage with them, but this only went so far. Even
Ratko Mladic, who was sent by the JNA to take over military command of the Bosnian Serb armed
forces (VRS) in May 1992 and over whom Milosevic exercised significant control, voted against the
Vance-Owen peace plan.80 The Bosnian Serbs’ refusal put a temporary stop to the diplomatic peace
efforts by the EC.
Increasing diplomatic efforts and the Dayton peace process, 1994-1995
In 1994 European pressure caused the U.S. to increase its role in the region. Under the leadership of Bill
Clinton, NATO threatened airstrikes unless Serbs agreed to put their heavy weapons around Sarajevo
under U.N. observation.81 By February, after an agreement between Karadzic and the Russian president
Boris Yeltsin resulted in the deployment of Russian peacekeepers, which lessened fears of reprisal and
made a NATO strike impossible, the Bosnian Serbs complied. Moreover, U.S. involvement ended the
fighting between Croats and Bosniacs. On 18 March 1994, the two sides signed an agreement in
Washington, creating the Moslim-Croat Federation of Bosnia. With this alliance, the military balance
started to turn against the Bosnian Serbs.82 Sanctions against Serbia increased as well.
Ratko Mladic did not seem to care about America’s increased role, however. He stepped up the
military campaign, and intensified the ethnic cleansing operations. When Bosnian Serbs tested the
international community’s resolve, it turned out every single time that Mladic could remain openly
defiant without the international community pushing through their threat.83 The Pale leadership
79
Sell, The Destruction of Yugoslavia, 207-209.
Armatta, ‘Historical Revelations’, 19-20.
81
The immediate cause of this threat was the shelling of Sarajevo’s Markale Market on 5 February, which killed
over sixty people. Sell, The Destruction of Yugoslavia, 214.
82
Ibid., 215.
83
This situation was worsened by the unwillingness of military leaders in the region to interpret their mandate
more broadly. They were reluctant to increase violence levels, partly because of fears of escalation, and partly
because they were unsure of the political response to military action.
80
67
remained hostile to any peace agreement that did not accept the Bosnian Serbs’ right to an independent
state. They rejected a 12 July Contact Group proposal, calling for a 51:49 division of territory – 51
percent for the Bosniac-Croat federation, 49 for the Bosnian Serbs. This led to a quarrel between
Milosevic, who saw the Bosnian Serbs’ implacability as an obstacle to the lifting of sanctions on Serbia,
and Karadzic, which culminated in the cessation of contacts between Belgrade and Pale.84 When the
Bosnian Serbs started new offensives against U.N. safe areas towards the end of 1994, NATO tried to
bomb them into compliance. As a response, 165 U.N. peacekeepers were taken hostage. This made the
international community wary of more air strikes and taught Karadzic and Mladic that they could defy
the international community without serious consequences.
Yet, events in 1995 caused the international community to change its strategy from
peacekeeping to peace enforcement and to finally take serious military steps to end the conflict. After a
series of brutal campaigns by the Bosnian Serbs against U.N. safe areas –including the capture of
Srebrenica on 10 July 1995, followed by the massacre of over 5.000 Bosniac men by Mladic’s Serbs –
NATO changed its air strikes policy from air support operations to a sustained bombing campaign,
which could be initiated by the commander of U.N. troops in the area.85 UNPROFOR-commander
General Rupert Smith did so on the evening of 28 August 1995, after mortar shells fired by Bosnian
Serbs exploded in the Markale Market in Sarajevo, killing thirty-seven and wounding around ninety.86
At first Mladic and Karadzic remained defiant. However, a combination of Operation Deliberate Force
– as the NATO bombing campaign was called – and mediation by Milosevic made them finally accept
NATO’s demands on 21 September. They agreed to cease hostilities, respect the safe areas, and put their
heavy weapons around Sarajevo under U.N. inspection.87 The bombing put a definitive end to the fouryear long siege of Sarajevo, and was a strong signal to all warring parties that negotiations would have
to be taken seriously this time.88
Another factor pushing the Serbian parties to the negotiation table, was their changed military
fortunes. As was mentioned earlier, the end of the war between Bosnian Croats and Bosniacs
significantly changed the military balance in Bosnia to the detriment of the Bosnian Serbs. Furthermore,
on 4 August 1995, the Croatian army – rebuilt with U.S. military assistance – initiated Operation Storm
which recaptured almost all territory held by the Croatian Serbs. While the operation was a military
success, there were also countless reports of atrocities by Croats against Serbs. 89 Making use of the
84
The supply of the Bosnian Serb army by Serbia did not stop, however. Goods were still smuggled across the
Dvina on a regular basis. Sell, The Destruction of Yugoslavia, 217-218.
85
Finlan, The Collapse of Yugoslavia, 79-80.
86
Sell, The Destruction of Yugoslavia, 246-247. According to Cohen, 38 people were killed, and 85 were
wounded. Furthermore he states that only a single mortar shell was fired. See: Cohen, Serpent in the Bosom, 156.
Following Sabrina Ramet, I tend to agree with Sell, rather than with Cohen. See: Ramet, ‘Review Essay’, 463464.
87
Finlan, The Collapse of Yugoslavia, 81-82.
88
Piers Robinson, ‘Misperception in foreign policy making: Operation ‘deliberate force’ and the ending of war
in Bosnia’, Civil Wars 4:4 (2001) 115-126, 120.
89
Finlan, The Collapse of Yugoslavia, 80.
68
weakened Serbian position, Bosnian Croat and Muslim troops attacked the Bosnian Serb positions in
September 1995 to regain as much territory as possible to strengthen their negotiating position, sending
waves of refuges into Serbia and Montenegro. The changed military situation on the ground, together
with increasing military and diplomatic pressure, culminated in the negotiations that were finally able
to put an end to the wars in the Balkans.90
These negotiations were led by U.S. diplomat Richard Holbrooke and held in October 1995 at
the Wright-Patterson Air Force base in Dayton, Ohio. Representatives from Croatia, the different parties
in Bosnia, and Serbia were invited. During the bombing, Milosevic had forced Karadzic to sign an
agreement which gave him the power to negotiate for the Bosnian Serbs.91 Milosevic had strong
incentives to sign a peace agreement. His domestic position had been seriously weakened: war,
sanctions, political corruption and economic mismanagement had crippled the Serbian economy; and
the bombing and Operation Storm had impaired the war effort in Bosnia and Croatia.92 Although
Milosevic was empowered by the Pale leadership to negotiate for the Bosnian Serbs, they still sent their
own delegate, Momcilo Krajisnik. During Dayton, Milosevic seemed to despise the Bosnian Serbs. He
frequently humiliated Krajisnik and often acted contrary to the Bosnian Serbs’ wishes.93 That Milosevic
seemed to be the go-to-man for the Americans, reveals something about the true power relations in the
Balkans.94 In the end, the agreement accepted on 21 November 1995 by all parties, included the
partitioning of Bosnia into two largely autonomous republics – similar to the Contact Group plan of 51
percent for the Bosnian Croat-Muslim Federation and 49 percent for a Bosnian Serbian Republic –, a
cessation of all hostilities and an easing of sanctions against Serbia.95 Furthermore, after personal
negotiations between Milosevic and Tudjman, all of Croatia – including the eastern part of the country
which was still controlled by the Krajina Serbs – was given back to Tudjman.96 U.N. forces would be
sent in to enforce the peace agreement, this time with sizeable deployments of ground troops from the
U.S.
Milosevic the peacekeeper and the Kosovo wars, 1995-1999
When Milosevic signed the Dayton accords, he was of the contention that all of the sanctions against
his country would be lifted. However, when the peace accords did not result in a complete abandonment
of sanctions – for example, they continued barring Serbia from the so desperately needed international
financial institutions – Milosevic felt betrayed.97 The powerful disappointment he felt, increased Mira’s
90
LeBor, Milosevic, 328.
Moreover, Karadzic and Mladic had been indicted by the ICTY, barring them from travel to the United States.
See: Cohen, Serpent in the Bosom, 158.
92
LeBor, Milosevic, 319.
93
To Haris Siladjzic, the Bosnian prime minister, Milosevic said: “You deserve Sarajevo because you fought for
it and those cowards killed you from the hills.” The cowards were the Bosnian Serbs. Quoted in: Ibid., 327.
94
Ibid., 329-330.
95
Ibid., 321-322.
96
Ibid., 328-329.
97
Sell, ‘A Political Biography’, 22.
91
69
hold over him. Meanwhile, JUL’s influence in the government amplified significantly. The failure of
Milosevic to repair the Serbian economy, together with growing discontent about the way in which
Milosevic and Markovic ruled the country, culminated in large-scale protests in 1996-1997. The
demonstrations were sparked by Milosevic’s shameless manipulation of the October 1996 election
results. Milosevic, who thought the protests were a U.S. conspiracy against his rule, reacted with
increasingly authoritarian measures. The fact that he remained in power despite the large
demonstrations, can be explained by his strong hold on power and the disorganization of the Serbian
opposition, which was not able to unite the Serbian people against what now more and more seemed to
be a Balkan tyrant.98
The Dayton agreements made Milosevic a ‘peacekeeper’ for the international community. He
was seen as an essential cog in the stability of the Balkans.99 However, the outbreak of violence in
Kosovo between Kosovar Albanians – united in the Kosovo Liberation Army (UCK), which fought for
an independent Kosovo – and Kosovar Serbs and its subsequent escalation in 1998, and especially
Milosevic’s response to it, started to undermine his peaceful image.100 The Serbs in the autonomous
region felt persecuted and discriminated by the Albanian majority. Now faced with increasing opposition
to his rule, Milosevic decided to once again use Serbian nationalism to maintain his hold on power.
Milosevic’s campaign in Kosovo started in 1998 with operations by Serbian paramilitary units and the
Serbian army. The fight against the Albanian UCK quickly took on the form of an ethnic cleansing
campaign, which removed hundreds of thousands of ethnic Albanians from the province. In March 1998
the U.N. Security Council decided that the Kosovo conflict was a threat to international peace. The
threat of NATO airstrikes brought about an agreement between Milosevic and Holbrooke in October
1998 to install an unarmed Kosovo Verification Mission (KVM) by the Organization for Security and
Co-operation in Europe (OSCE), which would have to maintain peace in the province.101
However, the UCK decided in November that progress towards a political settlement was not
going quick enough and stepped up their attacks against Serbian and KVM-targets.102 After the killing
of three Serbian policemen by the UCK, the Serbs retaliated by attacking Albanian civilians in Racak in
January 1999. When KVM-observers found out about the massacre, the Contact Group was “galvanized
into action”.103 The coercive diplomacy ending in an interim settlement proposed by the Contact Group
at Rambouillet was unsuccessful, however. Milosevic was not to be deterred by the in his perception
incredible threat of NATO air strikes.104 It turned out that the attack on Racak was just the beginning.
As NATO was debating air strikes against Serbian targets, Milosevic was putting into effect the
98
LeBor, Milosevic, 344-348.
Ibid., 331-332.
100
Alex J. Bellamy, Kosovo and International Society (New York: Palgrave Macmillan, 2002) 65-66.
101
Sell, The Destruction of Yugoslavia, 288-291.
102
Bellamy, Kosovo and International Society, 110-111.
103
Ibid., 119.
104
Michael Ignatieff, Virtual War: Kosovo and Beyond (London: Chatto & Windus, 2000) 59-61; Sell, The
Destruction of Yugoslavia, 299-304.
99
70
previously organized Operation Horseshoe, a large-scale military operation to retake the province on
which he had staked all of his political fortunes.105 Milosevic might have gotten away with abandoning
the Croatian and Bosnian Serbs at Dayton, but letting Kosovo go would mean the end of his political
career, if not of his life. Operation Horseshoe, a carefully planned move into Kosovo by the Serbian
Army which entailed the ethnic cleansing of the province, was implemented on 26 February 1999.106
The last negotiations in Paris took place in March, while 20.000 Albanians had already been forcibly
dislodged from their homes.107 After the Paris negotiations had failed as well, NATO started Operation
Allied Force, a sustained bombing campaign against Serbian targets. Milosevic at first seemed defiant,
especially when on 27 May 1999 he was indicted for war crimes by the ICTY.108 However, after 78 days
of NATO bombing he seemed to accept the inevitable and in June 1999 gave up his operations in
Kosovo, accepting the intervention of the international community.109 In the end, Milosevic agreed to
retreat the army from Kosovo and install a U.N. peacekeeping mission there.110
Endgame, 1999-2006
Milosevic’s failure to hold on to Kosovo – the province where his rise to power began, the province that
had always been central in his political campaigns – was one of the more significant factors leading to
his downfall, eroding any political support he still had left. Milosevic once again responded against
opposition with authoritarian measures. Disappearances of his opponents became a regular
phenomenon, with Ivan Stambolic vanishing in August 2000. In the elections of September 2000, he
suffered an embarrassing defeat, losing to the democratic opposition which had finally organized itself
in the Democratic Party of Serbia (DOS) around Vojislav Kostunica. Only after a final attempt to rig
the elections resulted in the storming of the Serbian parliament by an angry crowd of hundreds of
thousands of people on 5 October 2000, did Milosevic accept his defeat. He retired to his Belgrade
mansion, “realizing that the game was up”.111 Thus, the failure of Milosevic to hold on to Kosovo was
an important factor contributing to his fall in 2000. By this time, the region had already started to rebuild
from almost a decade of war and conflict.112
Kostunica, the new President of Serbia did not intend to let Milosevic live in peace, however.
In the end of March 2001, Kostunica sent the Serbian police to arrest Milosevic for corruption and abuse
105
Ibid., 48.
Bellamy, Kosovo and International Society, 164-165.
107
Ibid., 151.
108
Sell, The Destruction of Yugoslavia, 318.
109
Charlie Lyon, ‘Operation Allied Force: A Lesson on Strategy, Risk, and Tactical Execution’, Comparative
Strategy 20:1 (2001) 57-75.
110
Sell, The Destruction of Yugoslavia, 308-310.
111
Dragan Bujosevic and Ivan Radovanovic, The Fall of Milosevic: The October 5th Revolution (New York:
Palgrave Macmillan, 2003) 8; Finlan, The Collapse of Yugoslavia, 88-89.
112
See, inter alia: Ola Listhaug, Sabrina P. Ramet, and Dragana Dulic (eds.), Civic and Uncivic Values: Serbia
in the post-Milosevic era (Budapest and New York: Central European University Press, 2011); Sabrina P.
Ramet, Konrad Clewing, and Reneo Lukic (eds.), Croatia since Independence: War, Politics, Society, Foreign
Relations (Munich: R. Oldenbourg, 2008).
106
71
of power. Milosevic remained defiant. His bodyguards fired back at the police, sending them into retreat.
In the end, Milosevic only surrendered after being guaranteed that he would not be sent to The Hague,
and that his family would receive protection and be allowed to remain in Belgrade. On 31 March he was
arrested and taken to jail in downtown Belgrade. The linking of U.S. assistance to the new government
with the extradition of Milosevic to the ICTY, however, finally convinced Kostunica to comply with his
obligations to the Tribunal. On 28 June he was transferred to Scheveningen to face war crimes
accusations.113 Milosevic was furious that he was sent to The Hague. He did not recognize the Tribunal’s
legitimacy and, during his entire trial, remained openly hostile and defiant to the Tribunal’s procedures.
His behavior caused significant delays in the trial’s proceedings. Furthermore, the difficulties the
Prosecution was having in building up its case against him, exacerbated these delays. On 11 March
2006, all the efforts of the Prosecution proved to have been too late. Milosevic was found dead in his
prison cell, reportedly having suffered a fatal heart attack due to medical complications, although his
family remains convinced that he was poisoned.114 Thus, in a lonely prison cell in Scheveningen, on trial
before the International Criminal Tribunal for the former Yugoslavia, Milosevic’s life ended.
In conclusion
In this paragraph, a (relatively) short overview has been given of the conflicts that erupted in the Balkans
after Yugoslavia disintegrated in the early 1990s. The short Slovenian war of 1991 proved to be the
easiest one to end. The complexity and large numbers of actors, who were aligned along ethnic lines but
often fought in varying alliances against different enemies, made the Bosnian and Croatian wars, which
erupted in 1991-1992, much harder to solve. The support and involvement of states such as Croatia,
Serbia, and Albania aggravated the situation even further. Although the Bosnian and Croatian wars
effectively ended with the Dayton peace accords of 1995, this did not mean the end of massive violence
in the Balkan. Serbia’s Kosovo campaign of 1998-1999 once again saw the ethnic cleansing of thousands
of people and the perpetration of large-scale massacres. A huge NATO bombing operation finally ended
this conflict in June 1999. Much of the conflict in the former Yugoslavia was characterized by ethnic
tensions, leading to savagery and atrocities on a scale which Europe had not seen since the Second World
War.
The atrocities taking place during these conflicts, have often been blamed on one man in
particular, Slobodan Milosevic. Slobodan ‘Slobo’ Milosevic’s life saw many of the major historic trends
in Yugoslavia. Although he probably did not remember it, Milosevic witnessed the dramatic effects of
the occupation by Nazi Germany’s forces and the massacres against the Serbs by the Croats’ Ustasha
party. During his high school years, he joined in the praise of the omnipresent Tito. When in law school,
he participated in the communist youth organization, filling various functions and befriending the future
113
Sell, The Destruction of Yugoslavia, 353-354.
His death and the surrounding controversies are treated at length in: Branislav Jakovljevic, ‘From Mastermind
to Body Artist: Political Performances of Slobodan Milosevic’, The Drama Review 52:1 (2008) 51-74, 52-56.
114
72
President of Serbia, Ivan Stambolic. From his twenties to his forties he reaped the benefits of the marketoriented reforms of the 1960s and 1970s, which made Yugoslavia one of the most beloved communist
dictatorships in the West. When in the 1980s Yugoslavia’s communist state structure lost legitimacy
and nationalist sentiments were on the rise throughout the federation, Milosevic was one of the first and
most successful politicians to use this nationalism to make a bid for power. His participation in the
violent disintegration of the SFRY in the 1990s and his aggressive use of force against the Kosovar
Albanians in 1999, finally put him in the place where he would spend the last years of his life, a prison
cell in Scheveningen. In this way, he unwillingly became part of the reconciliation efforts that were
being undertaken by the international community in the former Yugoslavia.
73
§2.2 Slobodan Milosevic, “good communist”, “Serb national hero”, and
“Butcher of the Balkans”
The purpose of this paragraph is to adequately understand the man who is often held most responsible
for the chaos that engulfed the Balkans in the 1990s. To do so, it will analyze his rationality along the
guidelines that were presented in the analytical framework. The second and third section will do the
same for, respectively, his motivation and his personality.
§2.2.1 A ‘Mad Man’ or a Calculating Mastermind: the Rationality of Slobodan
Milosevic
In the analytical framework, it was mentioned that deterrence theory assumes that crimes are committed
after a conscious, rational analysis of costs and benefits. It was stressed, however, that human decision
making often does not conform to this conceptualization. There are various ways in which the decision
making process deviates from it and in which the capacity of humans to make fully rational decisions is
limited. It was suggested that computational difficulties, cognitive biases, emotions, and individual
differences were important in this limitation. In this section, the rationality of Milosevic will be studied
to analyze the ways in which the fallacies of Milosevic’s decision making process restricted his
conscious weighing of the possible costs and benefits of his actions, which would have been important
for deterrence to be achieved.
According to many observers of Milosevic – those who have worked with him as well as
international commentators – he was an excellent tactician, but a mediocre, or even bad, strategist.115 It
is now clear that he made many ‘bad’ decisions. These decisions were made with limited foresight and
had the goal of ensuring survival in the short term. Although, through these decisions, Milosevic was
able to maintain his hold on power for over a decade, in the end they ensured his downfall. In many
ways, Milosevic displayed great intelligence and a powerful grasp of party politics.116 During the endless
stream of negotiations in the 1990s, Milosevic was noted for his excellent case knowledge, often
speaking without prepared notes, able to remember many small details.117 He had a knack for playing
people against each other, with himself coming out on top. However, since he was also human, his
computational abilities were clearly limited. Especially his lack of foresight limited a proper weighing
of costs and benefits. Moreover, Milosevic seemed to employ a gambler’s mentality, resulting in a highrisk attitude of ‘all or nothing’ in favor of a more nuanced policy.118 In Bosnia, Croatia, and Kosovo his
policies seemed to be directed towards the maximization of his gains in the regions, simply hoping that
the negative consequences would be minimal, or outweighed by his gains. Yet, he did seem to be aware
115
Ramet notices this consensus in four accounts of Milosevic (Cohen, LeBor, Sell, and Snyder). See: Ramet,
‘Review Essay’, 455.
116
Sell, The Destruction of Yugoslavia, 172.
117
LeBor, Milosevic, 313.
118
Sell, ‘A Political Biography’, 23-24.
74
of possible negative consequences of his behavior. For example, he made efforts to evade identification
by erasing any documentary trail of his involvement in the Yugoslav wars. With the minimization of
evidence against him, he hoped to reduce the chance that he would be held accountable by any judicial
institution. As such, it would be an overstatement to say that Milosevic was only occupied with the
achievement of short-term goals, and only able to see the short-term consequences of his actions. Yet,
the image of him that emerges from outsider and insider accounts certainly seem to stress his general
lack of foresight. His failure in Kosovo is often blamed on miscalculation: in his eyes, NATO would not
have the guts to bomb Serbia.119 The computational difficulties described above limited Milosevic’s
capability to rationally calculate the costs and benefits of his actions.
When we study the influence of cognitive biases on Milosevic’s decision making, there are a
number of factors which consistently played a role. First of all, a powerful confirmation bias prevented
Milosevic from adopting a more nuanced worldview. The interaction between him and his wife Mira
produced a situation in which they relied heavily on each other to confirm each other’s worldviews.
Milosevic was reported to only believe those pieces of information that suited his beliefs. In this way,
fantastical notions like his firm belief that Serbians – especially Mira and himself – were not aggressors,
but rather the victims of aggression by the United States, remained unchallenged.120 Milosevic often
seemed to genuinely believe in his innocence, and simply denied any accusations of involvement with,
or sometimes even the existence of, ethnic cleansing as false. For example, in an interview, when asked
about his accountability for the crimes committed during the war and a possible trial in The Hague,
Milosevic replied: “My conscience is completely clear.”121 This situation was reinforced by the fact that
he surrounded himself with ‘yes men’ and the replacement of those around him who were too critical in
their approach. Those who worked for Milosevic often did not dare to inform their boss about events
which would make him angry. Moreover, Milosevic did not want to hear bad news. As such, the limited
information pool – limited both because of the availability heuristic and the confirmation bias – on which
Milosevic based his decision making process, biased its outcome. Furthermore, there seems to have been
a process of ‘loss aversion’ at work. Especially Milosevic’s venture into Kosovo was a last pursuit to
hold on to power. The possible negative consequences of this action – the ICTY-indictment, NATO
bombings, and finally his fall from power – were clearly downplayed. The chance of a loss of power
which was looming after the protests of 1996-1997 and the increasing opposition to his rule, had to be
fended off at all cost.
Third, Milosevic’s decision making process was also significantly affected by his powerful
affective moods. According to the Milosevic family’s doctors, both Slobodan and Mirjana were
emotionally unstable. When the Bosnian Serbs rejected the Vance-Owen peace plan, Slobodan
119
Cohen, Serpent in the Bosom, 272-274.
Silber, ‘Milosevic Family Values’, 23, 27.
121
Sell, The Destruction of Yugoslavia, 174.
120
75
reportedly suffered from a depressive episode.122 He thrashed his office out of anger during the protests
of 1996-1997 and the NATO bombing of 1999.123 Moreover, his regular fits of rage against the West
saw him – amongst others – accusing the West of harboring a neo-Nazi plan to destroy Yugoslavia,
implementing a neo-colonial design to create a ‘Greater Albania’ and fabricating atrocities to bring him
and the Serbian people down.124 As was mentioned in the analytical framework, although these tantrums
might in part have been for show, the anger at times also seems to have been genuine. Milosevic did not
only rage against his enemies while in front of the camera, but also in private situations. His emotional
instability must have seriously shortcut rational considerations. It only increased the commitment to his
own goals, decreasing the willingness to compromise with his enemies (non-Serbs, NATO, the U.S., the
U.N., etc.).
In conclusion
In all these ways, the capacity, capability, and willingness of Milosevic to seriously, consciously, and
objectively weigh the costs and benefits of his actions, which would have resulted in a rational decisions
making process, was limited. However, one should not conclude from this that Milosevic was
completely irrational, some kind of ‘mad man’. His great tactical skills ensured his survival for over a
decade. However, the limitations to his decision making process clearly decreased his responsiveness to
sanction threats. He failed to foresee that he would eventually lose power, be arrested and extradited to
The Hague. However, he clearly preferred to either ‘have it all’ or ‘lose everything’. The events which
finally led to his downfall – the ethnic cleansing in Kosovo, the rigging of elections – seemed to
Milosevic to be the only choice to maintain his hold on power. As such, the loss aversion-effect, together
with his gambler’s mentality, seems to have led to a certain kind of ‘no way back’-calculation. In
Kosovo, in Milosevic’s eyes at least, his power was at stake. Giving in to either ICTY sanction threats
or coercive diplomacy by the West would have almost certainly led to his loss of power and being
shunned by his peers. And indeed, his ultimate failure to hold on to Kosovo was a significant factor
which contributed to his downfall, his arrest, and finally his extradition to The Hague.
122
Ibid., 174-175.
Ibid., 175.
124
Anthony Borden, ‘Milosevic Rages Against the West’, Institute for War & Peace Reporting, (15 February
2002), available online at: http://iwpr.net/report-news/milosevic-rages-against-west (10 October 2013).
123
76
§2.2.2 Milosevic’s motivation
What drove Milosevic to destabilize the Balkans? Why did he incite the murder of thousands? Why did
he implement the ethnic cleansing operations which led to mass atrocities? Most biographies of
Slobodan Milosevic try to answer these questions by concluding that the prime motivator for Milosevic
was the pure acquirement of power. In this paragraph I will analyze this conclusion and also try to
present a counter-argument, namely that Milosevic did in part believe in his nationalist rhetoric and
implemented his policies according to the nationalist Serbian ideology.
Carla del Ponte, Prosecutor for the ICTY from August 1999 to January 2008, has stated that
“everything with […] Milosevic was an instrument in the service of his quest for power”.125 It is David
Rieff’s contention that, he “cannot be said to have had core beliefs – core beliefs other than in himself,
that is”.126 This conviction, that Milosevic was basically only really interested in power, is a widely held
notion about Milosevic. Even Slobodan’s wife, has said that he is not really interested in ideology, and
would not exactly die for an idea.127 Those who support this view argue that Milosevic cynically
manipulated Serbian nationalism, fashioning himself as a defender of Serbian nationalist interests, and
its supporters in the 1980s and used them to push aside his enemies and increase his hold on power.
Similarly, his support for the Bosnian Serbs and the Croatian Serbs did not stem from a genuine concern
for their well-being, but rather from the wish to create a Greater Serbia under his control. When the
Bosnian Serbs increasingly went out of control and when supporting them did not longer suit
Milosevic’s personal interests, he cynically abandoned them at Dayton, forcing them to give up
Sarajevo, which was entirely against the Bosnian Serbs’ own wishes. As soon as the Croatian Operation
Storm began, he abandoned the Croatian Serbs, leaving them to their faith.128 In Kosovo, Milosevic did
the same. When pressured hard enough he abandoned the Kosovar Serbs, leaving them vulnerable to
retaliatory mass murders. Even though he portrayed himself as the only true defender of the Serbs, his
actions did not fit this rhetoric. The sanctions that were the result of his actions in Croatia and Bosnia,
together with his own economic policies, destroyed the Serbian economy, leaving many Serbs hungry,
and caused a rampant inflation. Nor did Milosevic do much to help the thousands of Bosnian, Croatian
and Kosovar Serbs which fled to Serbia during the various conflicts.129
If Milosevic’s values would have to be described, then, the only real values that he seemed to
hold were his own self-interest, which was best served by power – which he valued most –, and the wellbeing of his family – his wife and his children. There seem to have been very few moral norms which
moderated his behavior. He went over the backs of his friends, his ethnic brethren, and especially the
125
Carla del Ponte, Opening arguments by the Prosecutor, (12 February 2002), available online at:
http://www.icty.org/x/cases/slobodan_milosevic/trans/en/020212IT.htm (10 October 2013) p. 9.
126
David Rieff, ‘Milosevic in Retrospect: An Essay’, Virginia Quarterly Review 82:1 (2006) 8-17, 9.
127
She claimed that she would die in defense of her ideology, although the ideology in her case, would of course
be communism.
128
Rieff, ‘Milosevic in Retrospect’, 11.
129
Sell, ‘A Political Biography’, 16-17.
77
non-Serbs, to further his goals. The love and affection for his wife have been described above. Her
influence on his decisions was enormous. According to Crnbornja, “more often than not Milosevic
carried out her wishes and designs, even if it went against his better judgment and the council of his
advisers”.130 He valued her opinions, and was constantly serving to her needs. Especially after Dayton,
when Milosevic felt betrayed by the United States, Mirjana’s influence grew exponentially.131 Therefore,
it is essential to recognize the influence of Mira when Milosevic’s motivation is analyzed. Moreover,
the protection of his family was an important value for Milosevic. When the Serbian police set out to
arrest him in 2001, he only agreed to surrender after receiving guarantees that his family would be
protected and demanded guarantees that he would not be extradited to the ICTY. These two demands
seem to sum up his most important values, his own self-interest and the well-being of his family.
At times, however, Milosevic did seem to believe in the nationalism he propagated.132 This
phenomenon – wherein someone who belies the world, in the end also belies himself – was described
earlier in the analytical framework. The propaganda that someone disseminates, invariably effects the
one who spreads it as well. He was convinced that the Serbian people were once again singled out for
victimization by the world community, just as they had become victims of Ottoman repression after the
1389 battle of Kosovo Polje and of Croatian persecution during the Second World War. Moreover, he
often accused the Western world of treating him unfairly. Especially after Dayton, he was disillusioned
and genuinely felt betrayed when the United States lifted only part of the sanctions against Serbia – even
though the gradual lifting of sanctions was agreed to in the Dayton peace accords. Other observers also
note that, although Milosevic is not a committed ideologue, he “creates a core personality for himself
and then shapes his own perception of the world to fit that personality”, meaning that he does actually
believe in his lies.133 Defying outside powers to protect himself, and according to his rhetoric also the
Serbs, might therefore have been to some extent motivated by elements of Serbian nationalism.
The failure of the ICTY’s sanction threats to motivate Milosevic can also in part be explained
by pointing to the differences between intrinsic and extrinsic motivation. Milosevic would have
preferred to act on his intrinsic values. Thus, the course of action which he would have preferred would
have resulted in the increase or holding on to power. When the ICTY was erected, it was hoped that it
would be able to effectively deter future violations of human rights. However, in Milosevic’s mind, it
functioned as an extrinsic motivator. To some extent, this was because Milosevic did not share the values
espoused by the Tribunal. In Milosevic’s perception, it was an anti-Serb court, which was erected to
punish the Serbs for trying to fight domestic terrorism and preserve their human rights. He was thus not
130
Introduction by Mihailo Crnobrnja, in: Djukic, Milosevic and Markovic, xi.
Sell, ‘A Political Biography’, 22.
132
For one commentator who was convinced of Milosevic’s nationalism, see: Aleksa Djilas, ‘A profile of
Slobodan Milosevic’, Foreign Affairs 72:3 (1993) 81-96. However, this account clearly stems from 1993. For
example, according to Djilas, Milosevic is a “man who can be trusted […] because he is scared”. See: Ibid., 95.
133
Sell, The Destruction of Yugoslavia, 173. However, personality psychologists would denounce the idea that a
man can ‘create’ a core personality for himself. Rather, these are influence by nature and nurture, and cannot be
changed much after childhood. See §1.1.3 above.
131
78
able to identify with the Tribunal’s values. This means that when he would have acted on the Tribunal’s
demands, the “perceived locus of causality” would have been outside himself, which people usually try
to avoid.134 Acting on his intrinsic motivation (i.e. acting to hold on to power), while accepting the
Tribunal’s extrinsic motivation (i.e. stop committing crimes), was in Milosevic’s eyes impossible.
In conclusion
Milosevic’s motivation and core values can be summed up by saying that he was mostly concerned with
the acquirement or maintenance of power. To this, it can be added that he was also greatly influenced
by his wife Mira Markovic, and that he was to some extent informed by notions of Serbian nationalism.
The ICTY’s legal sanction threats were acting as an extrinsic motivator, which would have barred
Milosevic’s pursuit of his prime motivation. This can explain to some extent the ICTY’s failure to deter
Milosevic.
134
See §1.1.2.
79
§2.2.3 The personality of Slobodan Milosevic
The personality of Milosevic was a multi-faceted phenomenon, which seemed to change over time and
per situation. Milosevic could be a hospitable, humorous host for international negotiators, and the
following day hostile and uncompromising to his enemies. However, according to the definition of
personality given by Larsen and Buss, a personality is a set of traits which are relatively stable over
time.135 Thus, when describing Milosevic’s personality, it is important to focus on those traits that seem
to be stable elements of it.
Warren Zimmerman, the last American ambassador to Yugoslavia and top diplomat during the
Bosnian wars, has offered a helpful tool in analyzing the various behaviors of Milosevic. He suggested,
only partly in jest, that there are in fact two Milosevic’s which come out under different circumstances
and in different social contexts: one who is “hard-line and belligerent”, and another who is “affable and
always looking for reasonable solutions”.136 The second Milosevic usually came out when he was
dealing with foreigners. On his various trips as a banking professional to the United States, he showed
himself to be friendly, open to American culture, and a good table guest. Men like David Rockefeller,
who he befriended on one of his trips, would never have guessed that this was the man who was to
become known as the ‘Butcher of the Balkans’.137 When foreign negotiators came to his office to
convince him of yet another peace deal, he was almost always friendly, open to their ideas and seemed
to have the time for hours of conversation.138 He would tell them what they wanted to hear, sending
them back home feeling like they had achieved something. But, as many diplomats soon found out, he
was not to be trusted. Zimmerman even called him “the slickest con man in the Balkans”.139 Louis Sell
also, commented that he had an “endless capacity for mischief” and that “one of the few constants in
Milosevic’s personality is his mendacity.”140 Richard Holbrooke, chief architect of Dayton, used to say,
“I felt like washing my hands every time I came out of a meeting with the man.” 141 Nevertheless,
Milosevic was able to manipulate his discussion partners into believing him. Very few negotiators felt
they were dealing with someone who was to be held accountable for war crimes.
The ‘First Milosevic’ would only come out whenever he was dealing with those below him. He
could coldly depose of his friends. For example, even an appeal to their decades-old friendship could
not save Ivan Stambolic when Milosevic pushed him aside on the 8th Party Congress, in 1989. During
135
Randy J. Larsen and David M. Buss, Personality Psychology: Domains of Knowledge About Human Nature
(4th Edition, New York: McGraw Hill, 2010) 4.
136
Warren Zimmerman, Origins of a Catastrophe (New York: Random House, 1996) 118. Quoted in Sell, ‘A
Political Biography’, 22.
137
LeBor, Milosevic, 68.
138
An anecdote that is often quoted, is the following: “Last March [1999], as NATO was preparing to unleash a
massive air campaign against Yugoslavia and Serbian authorities were poised to empty the province of hundreds
of thousands of Albanians, Slobodan Milosevic began phoning his old chums from high school, asking them to
drop by. I’m bored, he explained.” Silber, ‘Milosevic Family Values’, 23.
139
Quoted in: Djilas, ‘A Profile of Slobodan Milosevic’, 95.
140
Sell, ‘A Political Biography’, 12, 23.
141
Quoted in: Ignatieff, Virtual War, 49.
80
his time as head of the Belgrade city organization, he was known as ‘Little Lenin’, for barking out orders
against his inferiors while striding around his office. Equally, during the Dayton peace negotiations it
was noticed that he was extremely belligerent towards the Bosnian Serb delegate Momhilo Krajisnik,
denying him use of the single available telephone and treating him very disrespectful in general.142 These
characteristics were also noticed by some of his class mates in college, where he was said to be
condescending to his inferiors and a “toady” to those above him. After Dayton, and especially after the
NATO bombing of 1999 and his extradition to The Hague in 2001, Milosevic increasingly turned his
belligerence towards the West, and especially against the U.S. His behavior before the ICTY was
defiant. The first address he made immediately called the Court “illegal”, “criminal” and an instrument
of neocolonial policy by the United States.143 Finally, he seemed cold and indifferent to the victims of
the wars in the former Yugoslavia. This was the other Milosevic. The Milosevic which foreign diplomats
rarely saw, but which was an unmistakable part of Milosevic’s personality.
Jerrold M. Post explains the ‘evil side’ of Milosevic’s personality by looking at his family
history. Post emphasizes the fact that both his mother and his father committed suicide during his young
adulthood (his father shortly after graduating from college, his mother while he was in his early 30s). A
favorite uncle, a military intelligence officer, similarly committed suicide while Milosevic was still
young.144 The prominence of suicide in Slobodan’s family led to some cruel jokes and wishful thinking
among his opponents – hoping that when he faced adversity, he would also commit suicide.145 However,
instead of internalizing his issues (which is common with people who commit suicide146), Milosevic
seemed to externalize his issues when in crisis situations, “identify[ing] enemies as the cause of his
problems, and lash out at them”.147 With this method of self-deception, he was able to assume a thin
veneer of self-confidence.148 Indeed, in an interview with Milosevic featured in the excellent
documentary Death of Yugoslavia which Laura Silber and Alan Little made for the BBC, he seems laidback and confident, completely convinced of his self-righteousness.149 Milosevic displayed the same
attitude while in Court. But both Sell and Post comment that under this layer of self-confidence, rests a
wounded soul. When his world falls apart, and his wall of self-deception crumbles down, he becomes
142
LeBor, Milosevic, 325-327.
Slobodan Milosevic, Opening Arguments, (14-15 February 2002), online available at:
http://www.icty.org/x/cases/slobodan_milosevic/trans/en/020214IT.htm (11 October 2013) pp. 246-319. For
Milosevic’s behavior in court in general, see: Post and Panis, ‘Tyranny on Trial’.
144 Jerrold M. Post, Leaders and their Followers in a Dangerous World: The Psychology of Political
Behavior (Ithaca: Cornell University Press, 2004) 179-180.
145
Sell, ‘A Political Biography’, 20.
146
See, for example: Kevin A. Yoder, Dan R. Hoyt, and Les B. Whitbeck, ‘Suicidal Behavior Among Homeless
and Runaway Adolescents’, Journal of Youth and Adolescence 27:6 (1998) 753-771.
147
Post, Leaders and their Followers, 180.
148
Daniel Goleman, Vital Lies, Simple Truths: The psychology of self-deception (New York: Simon & Schuster,
1996).
149
See also the accompanying book: Laura Silber and Alan Little, The Death of Yugoslavia (London: Penguin
Books, 1996).
143
81
emotionally unstable, almost out of control.150 According to this view, therefore, the self-confident man
Milosevic appears to be, is nothing more than a show.
When Milosevic’s personality would have to be described according to the Big Five, I would
suggest the following rating: medium on Extraversion, high on Agreeableness, low on
Conscientiousness, low on Emotional Stability, and medium on Openness to Experience.151 Yet, it must
be emphasized that this rating is highly speculative, since it is not based on a clinical observation or any
sort of scientifically passable personality evaluation. Moreover, since Milosevic had such a multifaceted personality – for example being at one time very outgoing, while at other times being something
of a loner and a recluse – it is hard to get a consistent image of his personality traits. What is interesting
here, however, is the apparent applicability of the Dark Triad of personality types (narcissism,
Machiavellianism, and (subclinical) psychopathy). Their definition, as given in the analytical
framework,152 matches much of the description of Milosevic’s behavior and personality as it was laid
out in this paragraph. Although Milosevic cannot be called a clinical psychopath,153 he most definitely
displayed traits consistent with this personality type. The way in which Milosevic treated people – apart
from his direct family – was characterized by the interpersonal exploitation which forms a core part of
(subclinical) psychopathy and Machiavellianism. Furthermore, the low empathy and little remorse
which Milosevic displayed towards the victims of his policies – he remarked that he had a “clean
conscience” about what happened in Yugoslavia – are key elements of psychopathy. Machiavellianism
can also be seen in Milosevic’s deception and disregard of others: Warren Zimmerman had a reason
when he called him “the slickest con man in the Balkans”. Finally, Milosevic seemed to be something
of a narcissist. His sensitivity to criticism by anyone but his wife and the way in which he fashioned
himself as a Serb national hero – linking himself to the heroic Prince Lazar of Kosovo Polje – are
behavioral characteristics which are indicative of a narcissist personality. As such, as was already
predicted in the analytical framework, Zimmerman’s ‘evil’ Slobodan Milosevic seemed to have been a
good example of how the Dark Triad is applicable to authoritarian personalities.
In conclusion
The personality of Slobodan Milosevic had many facets, which suggests that there were two Milosevic’s,
a ‘good Milosevic’ and a ‘bad Milosevic’. Foreign diplomats mostly saw the ‘good Milosevic’, while
his victims mostly remember him as the ‘bad Milosevic’. His bad side is often explained by looking at
this family past, which is marked by drama and suicide. However, Milosevic externalizes his issues,
which can be clearly seen in his tantrums against the West and his behavior in court. The way he acted
Post, Leaders and their Followers, 179-180; Sell, ‘A Political Biography’, 20.
One might note that the low scores on Agreeableness and Openness to Experience predict prejudicial
behavior. See §1.1.3 above.
152
For the description and definitions of the personality traits associated with the Dark Triad, see §1.1.3, at p. 19.
153
The fact that, as far as I know, he has not been clinically diagnosed with this mental illness, is reason enough
for this.
150
151
82
towards other people shows indications of narcissism, Machiavellianism, and (subclinical) psychopathy,
which seems to be typical of authoritarian leaders. Because of Milosevic’s complex personality,
however, it is hard to give a clear, one-sided explanation of his personality.
83
§2.3 Slobodan Milosevic and the International Criminal Tribunal for the former
Yugoslavia
In the previous paragraph Milosevic’s rationality, motivation, and personality were explored. As such,
an attempt was made to understand ‘the man’ Milosevic. In this paragraph the relationship between ‘the
court and the criminal’ will be analyzed. To do this, this paragraph will first feature a brief description
of the ICTY’s establishment, its goals, and its operation. Second, Milosevic’s legal responsibility for
crimes committed during the Yugoslav wars will be discussed. Third, it will explore the factors relevant
to explaining the workings of the (potential) deterrent effect of the ICTY’s legal sanction threats issued
against Milosevic. The fourth section will scrutinize the way in which the ICTY’s perceived legitimacy
affected Milosevic’s reaction towards it. The fifth and last section considers how extralegal sanction
threats, emanating both from the social environment and Milosevic’s self-disapproval, impacted
Milosevic’s criminal decision making process.
§2.3.1 The International Criminal Tribunal for the Former Yugoslavia
In May 1993, at a time when the conflict in the former Yugoslavia was at a high point, when various
international diplomatic efforts to put an end to the brutal fighting had failed, the United Nations
Security Council responded with a measure which had never been seen before. With the adoption of
Resolution 827, it established under Chapter VII of the Charter of the United Nations an international
tribunal, which had to try suspected war criminals in an ongoing conflict situation. The Tribunal would
have to build on the precedents set by the international military tribunals established after the Second
World War, the International Military Tribunal in Nuremberg – which tried war criminals from Nazi
Germany – and the International Military Tribunal for the Far East in Tokyo – which held Japanese war
criminals accountable.154 The International Criminal Tribunal for the former Yugoslavia, as the Tribunal
came to be known, was thus part of the effort of the international community to end the violence in and
restore peace to the former Yugoslavia. With a comprehensive mandate, it was hoped that it would be
able to contribute to these efforts. The mandate was fourfold. First, it would have to bring to justice
individuals who were responsible for international humanitarian law violations. Second, the Tribunal
would have to ensure that the victims of these violations received justice. Third, it had to halt such
crimes in the future, not only in the former Yugoslavia, but in the wider world. And finally, it would
have to restore peace to the conflict zone and promote healing.155 The evaluation of these goals,
For the Nuremberg and Tokyo trial, see, inter alia: Erik A. Andersen, ‘The International Military Tribunals in
Nuremberg and Tokyo. Epoch-making and standard-setting, yet with different effects’, in: Cedric Ryngaert (ed.),
The Effectiveness of Transitional Justice (Antwerp: Intersentia, 2009) 3-26; Christoph Burchard, ‘The
Nuremberg Trial and its Impact on Germany’, Journal of International Criminal Justice 4:4 (2006) 800-829;
Robert W. Cooper, The Nuremberg Trial (London: Faber & Faber, 2011); Yuma Totani, The Tokyo War Crimes
Trial: The Pursuit of Justice in the Wake of World War II (Cambridge: Harvard University Asia Center, 2009).
155
Gary Feinberg, ‘The International Criminal Tribunal for the Former Yugoslavia: The Establishment and
Evaluation of a Unique Concept in International Justice Administration’, War Crimes, Genocide, and Crimes
Against Humanity 2 (2006) 87-113, 88-89.
154
84
especially on the basis of empirical evidence, has created a mixed judgment of its functioning. 156 Yet,
the window of opportunity to do something about this seems to have closed. In effect since 1993, the
ICTY is supposed to end its operations in 2014.
The Tribunal is structured into three Trial Chambers, one Appeals Chamber, an autonomous
and independent Prosecutorial Office, and a Registry for administrative affairs. Its judges, prosecutors
and staff are international, with over 80 countries having been represented since its establishment.157
The Tribunal’s jurisdiction covers four types of crimes – grave breaches of the 1949 Geneva Convention,
violations of the rules or customs of war, genocide, and crimes against humanity – which have to be
committed by natural persons in the former Yugoslavia since 1991.158 It tries its suspects on a
combination of common and civil law, using both adversarial and inquisitorial legal systems.
Indictments, such as the one against Slobodan Milosevic in May 1999, are issued on the basis of an
investigation by the Prosecutor’s Office. Although it has large legal powers – it has, for example,
superior authority over any national proceedings and is allowed to retrieve national cases when it is of
the opinion that justice is not being served159 –, the Tribunal is dependent on the cooperation of states
for some of its core functions. Probably the most essential of these core functions for which it is
dependent on state cooperation, is the apprehension of its suspects. Obviously, without the enforcement
of its arrest warrants, no trials can take place (it cannot try suspects in absentia). In this sense, the
Tribunal does not have any law enforcement powers. In its first years of existence, the problems with
securing the apprehension and extradition of suspects was a major factor impeding its successful
functioning. The examples of Ratko Mladic and Radovan Karadzic, who were able to evade arrest for
over 10 years, has already been noted. Yet, by 2012, every single one of the ICTY’s 161 indictees had
For a positive evaluation, see: Carla Del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst
Criminals and the Culture of Impunity (New York: Other Press, 2008); Feinberg, ‘Unique Concept’, 106-109.
More mixed views are found in: Donna E. Arzt, ´Views on the Ground: The Local Perception of International
Criminal Tribunals in the Former Yugoslavia and Sierra Leone’, Annals of the American Academy of Political
and Social Science 603:1 (2006) 226-239, 235-236; Janine Natalya Clark, ‘The Limits of Retributive Justice:
Findings of an Empirical Study in Bosnia and Herzegovina’, Journal of International Criminal Justice 7:2
(2009) 463-487, 486-487; Sanja K. Ivkovic and John Hagan, Reclaiming justice: the international Tribunal for
the former Yugoslavia and the local courts (Oxford: Oxford University Press, 2011) 152-166; Mirko Klarin,
‘The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia’, Journal of International Criminal
Justice 7:1 (2009) 89-96, 95-96; Sabrina P. Ramet, ‘The ICTY – Controversies, Successes, Failures, Lessons’,
Southeastern Europe 36:1 (2012) 1-9, 8. Outspokenly negative is: Robert M. Hayden, ‘Biased “Justice:”
Humanrightsism and the International Criminal Tribunal for the Former Yugoslavia’, Cleveland State Law
Review 47:4 (2000) 549-573, 552-568. Slobodan Milosevic of course made himself infamous with his negative
opinions about the Tribunal. See: Slobodan Milosevic, ‘Is Slobodan Milosevic Guilty of War Crimes? Con’,
International Debates 1:5 (2003) 141-159.
157
Feinberg, ‘Unique Concept’, 96.
158
As such, it cannot try organizations or states. Ivkovic and Hagan, Reclaiming justice, 31-32.
159
Feinberg, ‘Unique Concept’, 89-90. According to William W. Burke-White, this led to unwillingness with
national courts to take on cases of international crimes. Since there was no clear guidance of when and why
cases would be taken over, they did not see the feasibility of it. See: William W. Burke-White, ‘The domestic
influence of international criminal tribunals: The International Criminal Tribunal for the Former Yugoslavia and
the creation of the State Court of Bosnia & Herzegovina’, Columbia Journal of International Law 46:2 (2008)
278-350, 312.
156
85
been arrested.160 Other features for which it is dependent on states and NGO’s are the collection of
evidence, the protection of its officials, the interviewing of victims, and its funding. Because states have
often been either unwilling or unable to cooperate with the ICTY, despite their obligation under Security
Council Resolution to do so, this dependence has significantly detracted from its powers.
In conclusion
The ICTY was established by Security Council Resolution as a unique concept in international law.
Although it has large legal powers and an impressive mandate, it is still dependent on states and NGO’s
for some of its core functions, such as the apprehension of its suspects. This dependence on politics,
together with its erstwhile failure to have its indictees apprehended and some other shortcomings has
generated some controversies, which will be explored in further detail below, when the Tribunal’s
deterrence capabilities and legitimacy are analyzed. These shortcomings can go a long way in explaining
why Slobodan Milosevic was not deterred from committing international crimes by the international
legal proceedings against war criminals before the ICTY. First, however, it is necessary to examine why
Milosevic was indicted by the ICTY and how his legal responsibility for crimes was structured by the
Tribunal’s Prosecution.
Alette Smeulers, Barbara Hola and Tom van den Berg, ‘Sixty-Five Years of International Criminal Justice:
The Facts and Figures’, International Criminal Law Review 13:1 (2013) 7-41, 19.
160
86
§2.3.2 Milosevic’s legal responsibility for crimes committed during the Yugoslav
wars
As was discussed above, the exact involvement of Milosevic in the crimes committed during the wars
which followed the break-up of Yugoslavia remains a topic of historical debate. The reasons for this
have been outlined above. In this section, it is Milosevic’s legal liability for these crimes which is
discussed. The indictment, as it was first issued by the ICTY in May 1999, accused Milosevic (and four
other top Serbian political figures) of individual criminal responsibility for “plann[ing], instagat[ing],
order[ing], commit[ing] or otherwise aid[ing] and abett[ing] the planning, preparation or execution of”
crimes against humanity and violation of the laws or customs of war in Kosovo.161 In the six months
after his extradition in June 2001, indictments followed for Croatia and Bosnia.162 These accused
Milosevic of individual criminal responsibility for war crimes, crimes against humanity, grave breaches
of the Geneva Convention of 1949, and (complicity in) genocide.163 Interestingly, information about his
possible involvement in international crimes committed in Croatia and Bosnia was already known to
American intelligence services in 1992. However, legal prosecution of Milosevic was not deemed
feasible until 1999, because the Americans thought him to be too important for the peace process in the
former Yugoslavia.164
The accusations against Milosevic were based on his individual criminal responsibility for
crimes committed in Bosnia, Croatia and Kosovo. Individual criminal responsibility is a legal concept
which can be used on the basis of direct responsibility, command responsibility or complicity-based
responsibility.165 These concepts have been widely used in trials of other suspects before the ICTY, and
when Milosevic was put on the docket, they had been relatively well developed. Although it is not the
place here to delve too deeply in the judicial nuances of these legal concepts, it is nonetheless important
to explore on what basis the Tribunal accused Milosevic of war crimes, crimes against humanity,
genocide and grave breaches of the Geneva Convention of 1949. Essentially, Milosevic was held
responsible because of his position as President of the Serbian Republic and de facto leader of the federal
structure of the Federal Republic of Yugoslavia, including its army and police force. The Yugoslav
federal army, the JNA, committed multiple atrocities in the breakaway republics and acted often
symbiotically with paramilitary forces and secessionists.166 Moreover, according to the ICTY’s
Prosecutor, his support of and influence over the Bosnian and Krajina Serbs and various Serbian
paramilitary groups, made him responsible for war crimes committed by these entities. These crimes
ICTY, Indictment against Slobodan Milosevic et al. “Kosovo”, Case No. IT-99-37-PT, available online at:
http://www.icty.org/x/cases/slobodan_milosevic/ind/en/mil-2ai011029e.htm (15 October 2013).
162
Cigar and Williams, Indictment at The Hague, 20.
163
ICTY, Indictment against Slobodan Milosevic “Kosovo, Croatia & Bosnia”, Case No. IT-02-54-T, available
online at: http://www.icty.org/x/cases/slobodan_milosevic/ind/en/mil-ai040421-e.htm (15 October 2013).
164
Cigar and Williams, Indictment at The Hague, 19-20. In 1996, a group of experts united in the Bosnian
Institute had a fully prepared case for indictment. It is notable that the Prosecutor’s eventual decision to indict
Milosevic for crimes committed in Bosnia and Croatia, closely followed the reasoning outlined in this case.
165
Ibid., 37.
166
Ibid., 22.
161
87
included, inter alia, the siege of Vukovar, the shelling of Sarajevo, the execution of several thousand
Muslim men in Srebrenica, and ethnic cleansing operations in Bosnia and Croatia in general.
As was said before, Milosevic denied any involvement in the Bosnian and Croatian wars. Also,
although the Serbian army and police were directly involved in Kosovo, he denied that ethnic cleansing
took place in the region. Instead, he claimed, the Serbs were fighting domestic terrorism, citing multiple
(terrorist) attacks by the Kosovo Liberation Army as proof. Milosevic furthermore denied any linkages
to paramilitary groups operating in the conflict zone. In the BBC documentary The Death of Yugoslavia,
he said: “There is no one who can believe what is mentioned as an organized genocide, even organized
from Belgrade, even organized by me! It is really out of consideration!” 167 Moreover, Milosevic was
reported to be convinced that he did not do anything wrong in Kosovo. 168 He emphasized that the
Prosecutor could not come with any piece of evidence which showed him directly ordering war crimes,
dismissing the Prosecutor’s accusations as an “ocean of lies”.169 Both the historic record, as well as his
trial before the ICTY, however, have convincingly established that Milosevic actively supported, and in
some cases helped to organize and plan, ethnic cleansing operations in the various conflict zones.
Telephone intercepts, witness statements, and historical documents all testify to this.170
Milosevic might have genuinely thought that his support for Bosnian and Krajina Serbs or his
operations in Kosovo could not lead to his criminal liability under international criminal law. However,
under the case law developed by the ICTY, especially its interpretation of direct and command
responsibility, even before he stepped up military activities in Kosovo, these activities are in and of itself
enough for criminal liability.171 According to this case law, Milosevic would be directly responsible for
crimes committed by forces under his control. Moreover, through his various positions in the state
infrastructure, he had command responsibility for any crimes committed by federal forces because he
did know or could have known of their existence. Even though he denied their existence, it can be said
that he had imputed knowledge of the crimes, which means that he should have known of the crimes as
he was the de facto commander-in-chief of these forces.172 As such, Milosevic’s contention that the
Prosecutor had no case whatsoever because of its failure to present any direct evidence of him ordering
the commission of war crimes, did not prevent him from being individually criminally responsible under
international criminal law.
167
Quoted in: Ibid., 23.
Sell, The Destruction of Yugoslavia, 174.
169
Quoted in Post and Panis, ‘Tyranny on Trial’, 831.
170
Armatta, ‘Historical Revelations’, 35-36; Glaurdic, ‘Telephone Intercepts’, 97-98; Sell, The Destruction of
Yugoslavia, 318-328.
171
For a comprehensive list of relevant ICTY case law, see: Cigar and Williams, Indictment at The Hague, 3031, note 12.
172
Ibid., 65-145.
168
88
In conclusion
Sadly, Milosevic died before the Trial Chamber could determine his guilt or innocence. In the end, his
constant stalling, together with the complexity of the case brought against him, protracted his trial too
much for any judgment to take place.173 Therefore, his legal responsibility for the atrocities which took
place during the conflict in the former Yugoslavia can never be determined. History, however, will not
be as mild, and his responsibility for much of these atrocities is now widely accepted among scholars.
Therefore, it is still relevant to assess why the legal sanction threats issued by the ICTY did not deter
him from the crimes outlined above.
173
Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Criminal Proceedings
(Cambridge: Cambridge University Press, 2007) 271-274. One of Milosevic’s judges, Iain Bonomy, argues that
the adoption of the adversarial format for the proceedings at the ICTY. See: Iain Bonomy, ‘The Reality of
conducting a War Crimes Trial’, Journal of International Criminal Justice 5:2 (2007) 348-359, 350.
89
§2.3.3 The factors influencing the deterrence capability of the ICTY
The legal sanction threats emanating from the ICTY were supposed to deter possible perpetrators of
international crimes. The Security Council believed an international tribunal would be able “to end such
crimes” and would “contribute to the restoration and maintenance of peace”.174 As was noted in the
previous chapter, criminologists have identified three main characteristics of legal sanction threats
which are thought to be most relevant to their deterrent capability. These are their certainty, severity,
and celerity. Although empirical research identified certainty as the most important variable, severity
and celerity theoretically are equally important. Other phenomena which were analyzed as impacting
possible deterrence were the experiential effect and risk sensitivity. In this section it will be studied how
these factors applied to the relationship between the ICTY and Slobodan Milosevic. The ICTY’s
legitimacy and the social context of extralegal sanction threats, which were equally influential for the
Tribunal’s deterrent capability, will be studied in separate sections.
When looking at the certainty of sanctions by the ICTY against someone who committed war
crimes, crimes against humanity, grave breaches of the Geneva Convention, or genocide, the data is
mixed. An optimistic account of the Tribunal’s proceedings could note that by 2012 it has a 100%
clearance rate for its 161 suspects. Although some cases are still ongoing, such as those of Radovan
Karadzic and Ratko Mladic, almost all indictments have been fulfilled. The others have been withdrawn
due to death, withdrawn due to other reasons, or referred to national courts.175 Moreover, the Tribunal
has a 81% conviction rate. All these numbers suggest a relatively successful record of the Tribunal’s
proceeding. However, there are a few points which sketch a more negative image. First, it has been
noted that the 161 cases the Tribunal has dealt with or is still dealing with, is only a small sample of the
enormous amount of perpetrators of the crimes active in the conflict zone that fall under the Tribunal’s
jurisdiction.176 As such, the selectivity of the Tribunal’s proceedings is a problematic factor impacting
the certainty of its legal sanctions. Still, it could be argued that the ICTY’s main focus has been to punish
those ‘most responsible’ for these crimes, leaving the ‘smaller fish’ to national courts.177 Even when the
Tribunal is judged according to this stated objective, however, it must be said that it has failed to indict
a large number of people who were seemingly quintessential in the break-up of Yugoslavia and the
chaos that followed. Examples are Croatian president Franjo Tudjman – who is held responsible for
crimes committed by Croatian forces during Operation Storm178 – and Borisav Jovic – President of the
Security Council, ‘Resolution 827’.
Smeulers et al., ‘Facts and Figures’, 19.
176
Christopher Mullins estimates that the amount of perpetrators who are held accountable for international
crimes worldwide, cannot be much higher than 1%. See: Christopher W. Mullins, ‘Conflict victimization and
post-conflict justice 1945-2008’, in: M. Cherif Bassiouni (ed.), The Pursuit of International Criminal Justice: A
World Study on Conflicts, Victimization, and Post-Conflict Justice (Antwerp: Intersentia, 2010) 67-108.
177
Stephen Parmentier and Elmar Weitekamp, ‘Punishing Perpetrators or Seeking Truth for Victims: Serbian
Opinions on Dealing with War Crimes’, International Criminal Law Review 13:1 (2013) 43-62, 62.
178
Victor Peskin and Mieczyslaw P. Boduszynski, ‘International Justice and Domestic Politics: Post-Tudjman
Croatia and the International Criminal Tribunal for the Former Yugoslavia’, Europe-Asia Studies 55:7 (2003)
1117-1142, 1124.
174
175
90
State Presidency of Yugoslavia from May 1990 to May 1991, who is according to himself responsible
for the planning and preparation of war.179 The Tribunal’s relatively small number of cases, or in other
words, its selectivity,180 – even for the higher-level perpetrators – is therefore clearly a factor which
reflects negatively on the certainty of its legal sanctions.
For Slobodan Milosevic’s decision making process, however, the objective certainty of legal
sanctioning by the ICTY – although relevant – was less important than the way in which he perceived
it. To understand this perceived certainty, it is important to note the context in which Milosevic
committed his crimes. During the wars in Bosnia and Croatia, the period in which the Tribunal started
to enter into force and started issuing legal sanction threats, there seems to have been no certainty of
arrest whatsoever. The first Prosecutor of the ICTY, Richard Goldstone, was hesitant with speedy
indictments of top government officials. The lack of investigation and arrest powers, which marked the
‘honeymoon years’ of the Tribunal,181 further minimized the perceived certainty of legal sanctions.
Moreover, the international community clearly signaled that they thought Milosevic was an essential
figure for any peace efforts in the former Yugoslavia. But even when Louise Arbour, the ICTY’s new
Prosecutor started in 1996 to actively pressure states to comply with arrest warrants, and convinced
Western governments to make economic aid to the region contingent on the arrest and extradition to
The Hague of those the ICTY indicted, some top ranking indictees remained at large. Men like Karadzic
and Mladic, with whom Milosevic had frequent contact, seemed to be uncatchable.182 This must have
convinced Milosevic that, as long as he maintained his hold on power, he would be able to evade arrest
even when he would be indicted. This played a significant role in the failure of the ICTY to deter
Milosevic from ordering more mass atrocities.
A similar analysis seems to be applicable to the severity of the legal sanction threats of the
Tribunal. The Tribunal’s judges certainly considered general deterrence an important factor in
determining the length of the prison sentence meted out to those they convicted.183 The sentencing at the
ICTY accordingly seems to have been harsh compared to national courts in Western democracies, with
an average of 15.9 years imprisonment.184 Yet this is not the way it was perceived in the former
Yugoslavia. In multiple surveys, there seems to have been a consensus that the Tribunal was sentencing
its suspects too leniently. To some extent, this was because of the fact that the ICTY is not allowed to
apply the death penalty: a significant minority of victims thought the only appropriate sentence for those
Ramet, ‘Controversies, Successes, Failures, Lessons’, 5.
Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press,
2007) 169-170.
181
Ivkovic and Hagan, Reclaiming Justice, 3-4.
182
Drumbl, Atrocity, Punishment, 170.
183
Ivkovic and Hagan, Reclaiming Justice, 14. For the influence of this kind of goal-setting on sentence severity
in supranational criminal courts, see: Roelof Haveman, ‘Supranational Expectations of a Punitive Approach’, in:
Roelof Haveman and Olaoluwa Olusanya (eds.), Sentencing and Sanctioning in Supranational Criminal Law
(Antwerp: Intersentia, 2006) 145-160, 146-148.
184
Smeulers, ‘Facts and Figures’, 21-24.
179
180
91
responsible for mass atrocities would have been death.185 But even those who were against the use of
the death penalty thought the prison sentences should have been longer.186 This belief, that the sentences
being meted out did not stand in relation to the severity of the crimes committed, translated into a low
perceived severity of the legal sanctions issued by the ICTY. Although it is hard to say what Milosevic’s
exact opinion was about the severity of the Tribunal’s legal sanctions, it is reasonable to assume that his
opinion would have conformed to this dominant narrative. This low perceived severity could hardly
have posed as a significant factor in Milosevic’s decision making process.
The previously mentioned reluctance of the first Prosecutor to seriously engage in indictments
of top leaders responsible for the atrocities in the former Yugoslavia, combined with the difficulties the
Tribunal was facing in apprehending its suspects, greatly increased the amount of time between the
committal of crimes and the legal sanction and thus decreased the swiftness of legal sanctions in the
former Yugoslavia, especially for the ‘bigger fish’. To a considerable extent, this was a prosecution
strategy. Both Goldstone and Arbour wished to slowly build up cases against the higher leadership by
trying the lower-ranking perpetrators, thus building up a juridical record and ensuring the creation of a
hefty case law.187 Therefore, although American intelligence services already had evidence implicating
Milosevic in war crimes in 1992, his indictment followed only in 1999, and at that time only for crimes
committed in Kosovo. The first step towards a legal sanction, in this case his arrest, extradition, and
detention, only followed two years later, in 2001. This sequence of events led to a low perceived celerity,
which decreased the deterrent effect of ICTY legal sanction threats even more. The ‘objective’ data
paint a similar picture: there was an average time lapse of 3.6 years between an indictment and the start
of a trial.188 When the trial started, a combination of shortcomings of the adversarial model and the
complexity of the case material, ensured lengthy proceedings. After the trial started, the Tribunal needed
an average of 1.9 years to produce a judgment.189 For Slobodan Milosevic this was even longer. After
five years on the docket, Milosevic died before he could receive any sort of sentencing at all. While he
did spend these years in prison, it can be said that Milosevic never received an actual legal sanction for
the crimes he committed.
Something else which seemed to have played a role in the failure of deterring Milosevic, is the
experiential effect. As was stated in the analytical framework, the experiential effect holds that
(potential) offenders learn from their own experiences with the criminal justice system, and also update
their perception of the legal sanction threat by looking at what happens to their peers. Clearly, this
experiential effect must have minimized Milosevic’s perception of the threat of the ICTY even more. In
185
This was the opinion of at least 25 percent of the respondents. See: Ivkovic and Hagan, Reclaiming Justice,
19.
186
Ibid. Clark similarly finds that especially Bosniak victim groups “expressed anger and disappointment with
the prison sentences handed down by the ICTY”. See: Clark, ‘The Limits of Retributive Justice’, 471.
187
Minna Schrag, ‘Lessons Learned from the ICTY Experience’, Journal of International Criminal Justice 2:2
(2004) 427-434, 430-432.
188
Smeulers et al., ‘Facts and Figures’, 18.
189
Ibid.
92
his own experience, the ICTY would never indict him, since he had gotten a ‘get out of jail free’-card
from Richard Holbrooke at Dayton for the criminal acts he had committed in Bosnia and Croatia from
1991 to 1995.190 When he started considering crimes in Kosovo, in his perception, there was no reason
to believe that the international community would hold him accountable this time. Milosevic could draw
the same conclusion when he looked at the experience with the international criminal justice system of
his peers. Although the ICTY, together with the ICTR, was hailed as bringing to an end the ‘culture of
impunity’, the empirical reality was definitely different. Many of those who had enough power to do so,
were still able to defy legal accountability.191 In this case, it is interesting to note the link between
Saddam Hussein, at that time the dictator of Iraq, and Slobodan Milosevic. Apart from their apparent
competition for the title of ‘the worst villain of the 1990s’, they seemed to have learned from each
other’s experiences. There is some information that Milosevic drew conclusions about the persistence
and commitment of the international community from the fact that Saddam got away with his war against
Kuwait (First Gulf War, 1990-1991) and his defiance of the world.192 Closer at home, Milosevic seems
to have learned from the experiences of Radovan Karadzic and Ratko Mladic, who, even though they
were indicted relatively early by the ICTY, were able to remain at large for years. The fact that the
previously mentioned Tudjman and Josic, men who were in similar positions as Milosevic, were not
indicted by the Tribunal, must have equally told Milosevic that he would be able to remain out of the
Tribunal’s reach. In the end, of course, Milosevic did have to defend himself in court. Apparently, his
perception of his chances of legal sanctioning by the ICTY, was misinformed by his own and others’
experiences. However, the experiential effect in this case seems to have minimized Milosevic’s
perceived certainty of legal sanctions.
As a final point, the criminological phenomenon of risk sensitivity is clearly applicable to the
way in which Slobodan Milosevic reacted to the legal sanction threats issued by the ICTY. He tried to
minimize any evidence against him about his involvement with the wars in Bosnia and Croatia. For
example, most of his orders were given orally and he was keen on not leaving any documentary evidence
behind. Moreover, he used proxies – Bosnian and Croatian Serbs, Serbian paramilitary groups – to fulfill
his strategic goals of an ethnically pure Greater Serbia.193 In this way, whenever he was confronted with
the atrocities taking place, he would be able to parry by stating that his hands were clean. Milosevic
even seemed to be proud of this: when in court, he regularly accused the Prosecutor of not being able to
present a ‘single piece of evidence’ against him. The risk sensitivity Milosevic thus displayed, puts him
Rieff, ‘Milosevic in Retrospect’, 12.
A similar point was made in 2000 by Geoffrey Robertson. See: Geoffrey Robertson, Crimes against
Humanity: The Struggle for Global Justice (London: Penguin Books, 2000).
192
Saddam Hussein also seems to have learned from Milosevic. After Saddam was arrested by American forces
following his downfall in 2003, his behavior in court mirrored closely that of Milosevic. See: Post and Panis,
‘Tyranny on Trial’, 833-836.
193
See, for example: Ruth Jamieson and Kieran McEvoy, ‘State Crime by Proxy and Juridical Othering’, The
British Journal of Criminology 45:4 (2005) 504-527, 506; James Ron, ‘Territoriality and Plausible Deniability:
Serbian Paramilitaries in the Bosnian War’, in: Bruce B. Campbell and Arthur D. Brenner, Death Squads in
Global Perspective: Murder with Deniability (New York: St. Martin’s Press, 2000) 287-312.
190
191
93
squarely into the group offenders which are among the hardest to deter. Because he thought he would
be able to maintain beyond the reach of the ICTY, the potential ‘cost’ of the Tribunal’s legal sanction
threat, was significantly downplayed.
In conclusion
In all these ways – the low perceived certainty, severity and celerity, together with the experiential effect
and Milosevic’s risk sensitivity – the potential disincentive the ICTY could form in Milosevic’s criminal
decision making process, was minimized. This effect was exacerbated by the fact that Milosevic did not
consider the Tribunal to be a legitimate institution. Therefore, the next section will study the ICTY’s
perceived legitimacy.
94
§2.3.4 The social context and extralegal sanction threats
In the analytical framework, it was mentioned that it has been shown that the threat of extralegal
sanctions is often more important than legal sanction threats in influencing our behavior. These
extralegal sanctions can take the form of self-disapproval and social censure. Therefore, the formation
of these threats is formed by the social environment as well as the person’s self-identity. When studying
the extralegal sanction environment in the former Yugoslavia, then, it is relevant to note that first of all,
within the former Yugoslavia, the destabilization which followed the disintegration of the federal state
– and especially the frequent episodes of savage violence – led to a culture in which the use of force,
and the use of ethnic cleansing, became a well-accepted and even encouraged practice. Moreover, within
political circles, any moral norms which might have moderated policies against other ethnic groups,
seemed to have disappeared. During the 1990s the political elite criminalized: corruption and large scale
plundering of the Serbian economy created a new elite which was dependent on Milosevic for their
economic power and were thankful for the opportunities his wars created. This inversion of morality led
to a situation in which any threat of extralegal sanctions coming from the social environment – such as
shaming or (political) exclusion – for the committing of crimes against humanity etc. disappeared. A
quote from Serbia’s Minister of Defense at the time, General Tomislav Simovic, alludes to the social
context in which these crimes took place and the general acceptance of them as part of Serbia’s national
goals:
As far as I know the aforementioned ‘Arkan’ [commander of a prominent Serbian paramilitary
group operating in Bosnia and Croatia] is acting with the direct blessing of the [Republic of] Serbia
government in the areas of Slavonija, Western Srijem, and Baranja. It is also known that they are not the
only volunteers [there]. I would not differentiate between criminals and patriots, but rather between those
who contribute to the interests of their nation and those who do not, and one knows where criminals fit
in.194
The inclusion of people like Arkan’s Tigers, responsible for some of the worst atrocities committed
during the Yugoslav wars, into the community of ‘patriots’, clearly shows an inversion of morality in
which crimes are not something to be ashamed of, but rather something to be hailed as patriotism. Since
it can be said that the social context demanded the fulfillment of group goals, essentially the ethnic
cleansing of Greater Serbia, extralegal sanctions for mass atrocities were not to be expected.195
194
Quoted in: Cigar and Williams, Indictment at The Hague, 68-69.
According to Emily Shaw, the bombing of Serbia, especially of civilian targets there, caused a rising threat
perception among the Serbs, which bonded them together against NATO. Even opposition figures, who had
demonstrated en masse against Milosevic in the 1996-1997 protests, suddenly rallied around Milosevic as they
collectively defied NATO. The identification of the ICTY with NATO, subsequently increased opposition
against international criminal law. See: Shaw, ‘The Role of Social Identity’, 11-22. However, to some extent, the
indictments against Milosevic did seem to delegitimize Milosevic as a political player. It stigmatized him as a
criminal which detracted from his political support. Still, not too much weight should be given to these
195
95
For Milosevic, the absence of self-disapproval exacerbated this situation. This self-disapproval
was defined earlier as “the internal dissonance from having violated an internalized behavioral norm”.196
Above, Milosevic’s behavioral norms were described as being strongly guided by his pursuit of power,
one of his most important values. In the theory of extralegal sanctions, therefore, self-disapproval could
have taken place when Milosevic would have endangered his pursuit of power. Milosevic, who knew
that his rise to power had been kick-started by playing up Serbian nationalist themes in Kosovo Polje in
April 1987, saw the dominance of Kosovo by the Serbian government as crucial for his hold on power.
Therefore, self-disapproval, as well as (at least in his eyes) social disapproval, would have occurred
when he would not have initiated military operations (culminating in the ethnic cleansing of Operation
Horseshoe) in Kosovo in 1998. The social and personal context therefore deterred Milosevic from not
committing or ordering mass atrocities in Bosnia, Croatia, and Kosovo.
The reliance on extralegal sanctions for controlling criminal behavior, was even greater in the
former Yugoslavia because of the malfunctioning of local judicial systems. The perceived absence of
legal sanctioning threats emanating from properly functioning sanctioning institutions, increased the
relative importance of extralegal sanction threats. During the 1990s, the legal sanctioning institutions
were criticized by experts “for their lack of independence, incompetence and corruption”.197 They were
either unable or unwilling to prosecute war criminals, especially when these criminals were members of
the region’s dominant ethnic group. Therefore, during the 1990s, the region lacked a rule of law.198 It
was only long after the war, around 2003, that residents of the former Yugoslavia started to regain trust
in local legal sanctioning institutions.199
But during the 1990s, the lack of trust in the local
judiciary system, decreased the possibility of legal deterrence and increased the importance of extralegal
sanction threats. Sadly enough, however as was shown above, these extralegal sanction threats formed
not against committing mass atrocities, but rather against not committing these crimes.
In conclusion
Although extralegal sanction threats can act as important behavioral constraints, for example in
controlling criminal behavior, in the former Yugoslavia, the social context which issued these extralegal
sanction threats was characterized by an inversion of morality. Therefore, the extralegal sanction threats
did not form against committing atrocities which furthered group goals, but rather against not
committing these atrocities. Moreover, Milosevic´s own norms and values, which were mainly focused
on holding onto power, were violated in his eyes if he would not have adopted policies of ethnic
arguments, since the population in general did not necessarily believe the ICTY was a legitimate institution itself
and was capable of delegitimizing their leaders. The quote by Kostunica below further illustrates this.
196
Daniel S. Nagin and Greg Pogarsky, ‘Integrating Celerity, Impulsivity, and Extralegal Sanctions into a Model
of General Deterrence: Theory and Evidence’, Criminology 39:4 (2001) 865-892, 869.
197
Ivkovic and Hagan, Reclaiming Justice, 20.
198
Ibid., 170.
199
Ibid.
96
cleansing which he saw as necessary for holding onto power. The social context and Milosevic´s
individual characteristics created a situation in which extralegal sanction threats caused, rather than
prevented crime.
97
§2.3.5 The legitimacy of the ICTY
Antonio Cassese, the first President of the ICTY, in his study on the legitimacy of international tribunals,
concluded that the ICTY had a positive track record in this aspect.200 At first, the residents of the former
Yugoslavia seemed to agree. Especially among victims, there was a positive vibe surrounding the
establishment of the institution, and many had positive expectations of it.201 Many of the Serbs, however,
with Milosevic as one of them, disputed the Tribunal’s legitimacy. During the ICTY’s first trial, against
Dusan Tadic for crimes committed in Prijedor,202 there was a dispute between the defendant and the
Prosecutor over the legitimacy of the ICTY’s establishment.203 The establishment was contested
because, in Tadic’s view, the Security Council did not have the authority to establish international
tribunals with jurisdiction over residents of independent countries. As such, it was not “established by
law”.204 Although the legality of the Tribunal’s establishment was confirmed by subsequent rulings, this
was a first clear challenge to the Tribunal’s legitimacy. When the Tribunal started to become a fully
functioning institution, the positive attitude which surrounded its establishment soon faded away. One
of the most damaging narratives for the ICTY which became dominant in post-war Yugoslavia, among
Serbs as well as Croats, was that the Tribunal was strongly biased against their own ethnic group.205 In
part, this was because of the fact that there were no clear winners after the Dayton peace accords. As
such, the Tribunal became a kind of arbiter, whose decisions were seen to establish the ‘winners’ and
the ‘losers’ of the wars.206 Moreover, the fact that the post-war governments did not accept that their
ethnic group were both victims as well as perpetrators, denying that they also had committed
international crimes, complicated the acceptance of any indictments against members of their own
group.207 The almost complete absence of outreach by the ICTY in the 1990s moreover – the Outreach
programme was not established until 1999 –, gave post-war governments the opportunity to influence
their constituency’s opinions about the ICTY.208 For example, a 2006 survey indicated that a majority
Antonio Cassese, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of
International Criminal Justice’, Leiden Journal of International Law 25 (2012) 491-501, 492-493.
201
Ivkovkic and Hagan, Reclaiming Justice, 159.
202
ICTY, Tadic. “Prijedor”, Case No. IT-94-1, available online at: http://www.icty.org/case/tadic/4#ind (17
October 2013).
203
Mia Swart, ‘Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY’,
Goettingen Journal of International Law 3:3 (2011) 985-1010, 987-988.
204
Ibid., 996.
205
Miklos Biro et al., ‘Attitudes towards justice and social reconstruction in Bosnia and Herzegovina and
Croatia’, in: Eric Stover and Harvey M. Weinstein (eds.), My neighbor, my enemy: justice and community after
mass atrocity (Cambridge: Cambridge University Press, 2004) 183-205, 193; Bojan Tonkic, ‘Serbia: Milosevic
Trial Grips Nation’, Institute for War and Peace Reporting Balkan Crisis Report #318, (15 February 2002),
available online at: http://iwpr.net/report-news/serbia-milosevic-trial-grips-nation (18 October 2013).
206
Ivkovic and Hagan, Reclaiming Justice, 160.
207
Nenad Dimitrijevic, ‘Serbia after the criminal past: what went wrong and what should be done’, International
Journal of Transitional Justice 2:1 (2008) 5-22, 11.
208
Janine Natalya Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’, International
Criminal Law Review 9:1 (2009) 99-116, 100-106.
200
98
of Serbs still rejected the idea that crimes took place in Srebrenica or Sarajevo.209 Moreover, perceptions
of partiality and characterizations of the Tribunal as victor’s justice, decreased the perceived legitimacy
of the ICTY. The Tribunal’s decisions – be it its indictments, its acquittals or its convictions – therefore
became a zero-sum game, in which any decision which was perceived positively by one ethnic group
was perceived negatively by the other ethnic group.210 This reinforced the already salient feelings of
victimization amongst the Serbs, and thus confirmed the dominant narrative that the Tribunal was set
up to punish the Serbs.211 Arguments like these are sometimes echoed in the opinions of Western
scholars. Defendant’s attorneys, also, have complained of unfair treatment by the ICTY compared with
the Prosecution.212 The question of the legitimacy of establishing an international tribunal by Security
Council Resolution was already debated during the negotiations over Resolution 827.213 Moreover, some
commentators have labeled the whole Tribunal as victor’s justice.214 Noting the fact that during the
Milosevic trial, both Prosecutor Louise Arbour and presiding judge Richard May were from NATO
countries which had gone to war against Milosevic’s Serbia, David Rieff concludes that, “if the ICTY’s
is not victors’ justice, the term has no meaning”.215 As such, because the Tribunal was perceived – by
the Serbs and Croats especially – to be discriminatory, to not treat its suspects fairly, and to not be
impartial, the Tribunal could not conform to Tyler’s procedural justice model.216
The legitimacy of the ICTY always seemed to be especially important to Milosevic. From the
beginning of the ICTY’s operations, he claimed that the Tribunal was established unlawfully, claiming
that, according to its charters, the United Nations was not allowed to set up an international tribunal.
This focus on legitimacy is something which was important to Milosevic throughout his political
career.217 Like those around him, he felt that the ICTY was set up to punish the Serbs. With this, he
followed the dominant narrative. Although it is true that he was to a large extent himself responsible for
constructing this narrative, constantly denying the ICTY’s legitimacy and using his control over the
media to propagate this view, it is interesting to note that when he was arrested for abuse of power and
corruption, Vojislav Kostunica, Serbia’s new president, was at first reluctant to hand him over to The
Hague. Kostunica, the man who brought down Milosevic and was hailed by the West as the first true
Belgrade Center for Human Rights, ‘Public opinion in Serbia: Views on domestic war crimes, judicial
authorities and the Hague tribunal’, OSCE, (2006), available online at: http://www.osce.org/serbia/24241 (17
October 2013).
210
Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts:
Implications for the Success of Transitional Justice Mechanisms’, Vanderbilt Journal of Transnational Law 45:2
(2012) 405-476, 440, 461.
211
Ivkovic and Hagan, Reclaiming Justice, 160-163.
212
For an overview of the complaints by defendant attorneys, see: Mark S. Ellis, ‘Achieving Justice before the
International War Crimes Tribunal: Challenges for the Defense Counsel’, Duke Journal of Comparative and
International Law 7:2 (1997) 519-538, 522-536.
213
Swart, ‘Tadic Revisited’, 995.
214
Hayden, ‘Humanrightsism’, 568-569; Rieff, ‘Milosevic in Retrospect’, 14-15. Hayden also questions the
Tribunal’s impartiality, because of its failure to criminalize the cluster bombing of Nis by NATO warplanes.
215
Rieff, ‘Milosevic in Retrospect’, 14-15.
216
See §1.2.2.
217
Jakovljevic, ‘From Mastermind to Body Artist’, 55.
209
99
democratically elected president of post-war Serbia, thought the ICTY was an anti-Serbian institution
and preferred to try Milosevic in Serbia.218 Thus, the conviction that the Tribunal was unfair to Serbs
was not only held by indoctrinated masses or those indicted for war crimes. Milosevic consistently
showed his disregard for the Tribunal’s proceedings while in the docket. He was able to portray his trial
as a trial against the Serb nation; his rants against the Tribunal have been alluded to previously. It is also
clear that Milosevic did not feel like his social status was respected by the Tribunal. As President of
Serbia, he felt that he should not be tried by a distant court in The Hague. The Tribunal’s suspicions of
him damaged his position as a key international player and his subsequent reputation as a ‘Peacemaker’,
especially when the ICTY issued indictments against him in May 1999. This is another factor which,
according to Tyler’s procedural justice model, impacted the ICTY’s perceived legitimacy in a negative
way.
The fact that Slobodan Milosevic did not view the ICTY as a legitimate institution which would
be able to try war crimes in the region fairly and impartially, had important consequences for his
behavior. As was noted earlier, when someone does not see a court as legitimate, it will not form a “right
and proper restriction of behavior”.219 Therefore, this low perceived legitimacy has some explanatory
power in understanding why Milosevic did not seem to be bothered by the legal sanction threats that
were emanating from the ICTY. When the Tribunal started issuing indictments against men like Mladic
and Karadzic, and after the Tribunal had convicted its first suspects, Milosevic did not feel any reason
to comply with the Tribunal’s decisions – namely that war crimes, crimes against humanity, and
genocide were completely unacceptable and that individual leaders could be he held criminally
responsible for these crimes. As such, the ICTY was not able to restrict Milosevic’s behavior. Moreover,
a low perceived legitimacy leads to problems with accepting unfavorable outcomes of the court’s
decisions. The fact that the Tribunal convicted multiple Serbs of war crimes in Croatia, Bosnia, and
Kosovo, was perceived by Milosevic as a condemnation of the entire Serbian nation. If he would have
perceived the Tribunal as a legitimate sanctioning institution, he might have accepted the idea that Serbs
were both perpetrators and victims, and that Serbs had indeed committed multiple international crimes
during the Yugoslav wars.
Because many Serbs did not perceive the ICTY to be a legitimate institution, the certainty of the
ICTY’s legal sanction threat decreased. The Tribunal was unable to secure cooperation by the authorities
in Serbia, which was necessary for the effective execution of its mandate. The decreased certainty in
turn lowered the perception of the ICTY’s legitimacy. Since for a long time the ICTY could not try those
held most responsible for the crimes committed in the former Yugoslavia, a large share of the population
Sell, The Death of Yugoslavia, 355; Emily Shaw, ‘The Role of Social Identity in Resistance to International
Criminal Law: The Case of Serbia and the ICTY’, Berkeley Program in Soviet and Post-Soviet Studies Working
Paper Series (2003) 3-31, 8.
219
Dawn L. Rothe and Christopher W. Mullins, ‘Beyond the Juristic Orientation of International Criminal
Justice: The Relevance of Criminological Insight to International Criminal Law and its Control: A Commentary’,
International Criminal Law Review 10:1 (2010) 97-110, 103.
218
100
saw it as an ineffective institution, which detracted from its legitimacy. In this way, the perceived
legitimacy and perceived certainty interacted with each other.
In conclusion
In the analytical framework, it was noted that legitimacy can powerfully influence someone’s behavior.
The fact that Slobodan Milosevic, and many other residents of the former Yugoslavia, did not see the
ICTY as a legitimate sanctioning institution, undermined the influence the Tribunal could potentially
have had on moderating Milosevic’s behavior. Because the Tribunal’s actions were perceived to be
procedurally unfair, discriminatory against his own ethnic group, and disrespectful of his social position,
the ICTY was not seen by Milosevic as a right and proper restriction on his behavior.
101
§2.4 Summarizing the findings of this chapter
The chaos and conflict that broke out on the territory of the former Yugoslavia after its disintegration in
1991, was marked by exceptional savagery and barbarism. Many atrocities were committed by all sides.
With the establishment of the ICTY in 1993, the international community hoped to be able to deter
future violations of international human rights law. At least in the case of Slobodan Milosevic, this hope
proved to be futile. He did not change his policies in Croatia and Bosnia and some of the war’s worst
crimes, such as the Srebrenica massacre of 1995 were committed well after the Tribunal was established.
Moreover, although the Tribunal was clear about its intentions to hold those most responsible for
international crimes accountable, Milosevic initiated ethnic cleansing operations in Kosovo in 1999,
even after he was indicted. This chapter has attempted to explain why the legal sanction threats issued
by the ICTY failed in deterring future atrocities in the former Yugoslavia.
It did so by first looking at Milosevic’s life, his rationality, motivation, and personality,
concluding that various factors contributed to the deterrence failure. It was noticed that there seemed to
have been a ‘no way back’-effect at play. In many ways, Milosevic needed the crimes to maintain the
thing he valued most, power. Because Milosevic had staked so much of his political fortunes on holding
on to Kosovo, on defending Serbian nationalist interests and creating an ethnically pure Greater Serbia,
any obvious and clear forsaking of these goals, would surely lead to the eroding of his political support.
This became clear when he gave in to NATO bombing and lost Kosovo. Soon, he lost power and was
extradited to The Hague. Thus, the combined phenomena of loss aversion and the power of Milosevic’s
prime value, power, problematized the possible ICTY deterrence. On Milosevic’s personality, it was
found that there might have been two Milosevic’s, a good and a bad one. The bad one seemed to closely
conform to the Dark Triad of personality.
Second, this chapter looked at the relationship between the court and the criminal. It studied the
certainty, severity, and celerity of the Tribunal’s legal sanctions, concluding that all three were perceived
by Milosevic as being rather low. Combined with Milosevic’s experiences with the ICTY – remaining
immune from prosecution, while his friends – who were indicted – remained beyond the Tribunal’s
reach for a long time – and his risk sensitivity, this decreased the relevance of the disincentive the
Tribunal’s threats could deliver. This paragraph then looked at how Milosevic perceived the ICTY’s
legitimacy and the environment in which extralegal sanction threats were formed. It found that
Milosevic strongly contested the ICTY’s legitimacy, seeing it as victor’s justice, set up to punish him –
and with him the Serbs –, while, in his view, the Serbs were the victims, not the aggressors. Moreover,
he contested the establishment and impartiality of the Tribunal. Lastly, looking at the environment in
which extralegal sanction threats were formed, it was concluded that the inversion of morality in the
former Yugoslavia – leading to the labeling of the perpetrators of mass atrocities as ‘patriots’ – and the
criminalization of the state elite in Serbia, caused extralegal sanction threats to form against not
committing the crime. Milosevic’s internalized behavioral norms, which were mainly concerned with
102
the acquirement of and holding on to power, furthermore prevented self-disapproval to occur when he
conducted policies which he knew would lead to severe crimes being committed.
All these factors together, present a multi-causal explanation for why the ICTY failed to deter Slobodan
Milosevic from committing, ordering, or aiding and abetting the commission of mass atrocities.
103
Chapter 3: Joseph Kony and the International Criminal Court
The civil war between Joseph Kony’s Lord’s Resistance Army (LRA) and the Ugandan government has
plagued Northern Uganda and its neighbors for the last 25 years, taking the lives of tens of thousands of
civilians and causing the misery of more than a million people. Joseph Kony and his Lord’s Resistance
Army (LRA) have captured the fantasies of many, especially after the YouTube-hit “Kony 2012” gave
the rebel leader the status of a super villain. Usually, reference is made to his brutal, apparently
religiously inspired campaign of violence, the mutilations and the abduction of sixty to eighty thousand
children, who are used as sex-slaves and forced to commit atrocities. Furthermore, it is often noted that
he is being searched for crimes against humanity by the International Criminal Court (ICC) in The
Hague.1 When the ICC was established back in 2002, it was hoped that it would be able to deter future
atrocities by building on the legacy of international prosecution set by the International Criminal
Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, and by
prosecuting perpetrators of serious crimes itself. This chapter will analyze the way in which Joseph
Kony responded to the legal sanction threat issued by the International Criminal Court. To do so, it will
first set the context by giving an overview of the conflict in Northern Uganda and the role Joseph Kony
played in it.2 Next, an attempt will be made to better understand ‘the man’ Joseph Kony, by looking at
his rationality, his motivation, and his personality, and the way they affected his response to the
International Criminal Court. The next paragraph will then further scrutinize the interaction between
Kony and the ICC. After describing the establishment, structure, and functioning of the Court and setting
out Kony’s legal responsibility, the factors influencing the deterrence capability of the ICC vis-á-vis
Joseph Kony are analyzed. To give more depth to this analysis, this chapter will further look at the social
context in which Kony committed his crimes and the way in which extralegal sanction threats emanating
from it affected his decision making process. The chapter will conclude by summarizing its findings.
§3.1 Joseph Kony and the conflict in Northern Uganda
As is the case for many post-colonial wars in Africa, the root causes for the conflict in Northern Uganda
can be traced back to policies adopted during the colonial rule of the 19 th and the first half of the 20th
century. Uganda had been colonized by the British Empire, whose rule brought an end to the many local
wars caused by the ivory trade and the involvement of Nubi soldiers who were sent to the region to
secure it for the Egyptian Khedive. The almost sixty years of colonial rule were marked by relative peace
See, for example: Jeffrey Gettleman, ‘In Vast Jungle, U.S. Troops Aid in Search for Kony’, The New York
Times, (27 November 2013), available online at: http://www.nytimes.com/2012/04/30/world/africa/konytracked-by-us-forces-in-central-africa.html?ref=josephkony&_r=0 (2 December 2013).
2
In many ways, Joseph Kony’s life and the activities of the LRA coincide. Joseph Kony was a central and
indispensable element of the LRA. Therefore, when the conflict overview discusses the activities and history of
the LRA, it can be seen as coincident with that of Joseph Kony.
1
104
and stability.3 As a way of governing the region, the British organized its inhabitants into different tribes,
such as the Acholi, of which Joseph Kony is a member. The creation of tribes divided Uganda along
ethnic lines, which later created a social context conducive to ethnic violence. The colonial masters also
exacerbated long-standing regional divisions in Uganda. By prioritizing economic and political
development in the mostly Bantu-speaking south, the Lwo-speaking north was ignored, used as a source
for labor reserves or recruits for the army.4 This created a deep rift between the northern and southern
parts of Uganda and put them on different roads of development.5
Quickly after Uganda had gained its independence in 1962, Milton Obote, the country’s first
Prime Minister who came from Northern Uganda, used the northern-dominated army – most of whom
were from the Acholi tribe – to abolish the constitution and establish dictatorial rule.6 Obote did not
shirk from using violence and repression to consolidate his hold on power, but his successor, Idi Amin
Dada,7 who overthrew Obote’s government in 1971, was even worse. Amin’s power base was in the
north, but he immediately set out to court the economic center of power in the south. To do so, he sent
many Lwo-speaking army recruits back to the barracks in the north, where they were massacred.8 In
addition, his reign of terror mainly targeted Acholi and Langi, another tribe from the north.9 Amin’s
ruthless dictatorship caused many Acholi to flee Uganda, some of them regrouping across the border to
form the Uganda National Liberation Army (UNLA). When Amin invaded Tanzania in 1978, the
Tanzanian President Julius Nyerere decided to respond in kind. In 1979, together with the UNLA,
Tanzania invaded Uganda and removed Amin from power.10 After elections in 1980 which were widely
considered to be rigged, Obote came back to power. In the south, which was once again facing a northern
president, a large number of insurgencies came up, one of them the National Resistance Army (NRA)
of Yoweri Museveni.11 The ensuing conflict between Museveni and Obote was fought largely along
ethnic lines: the Bantu-speaking people from the south who made up the NRA, fought against Obote’s
Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed
Books, 2006) 25-27.
4
Janine Natalya Clark, ‘The ICC, Uganda and the LRA: Re-Framing the Debate’, African Studies 69:1 (2010)
141-160, 142. Clark states that the people in the north were speakers of the Nilotic languages. However, the
people in North Uganda are usually referred to as Lwo-speakers. Dominant in Northern Uganda, Lwo is a
subgroup of the Nilotic language group. See: Doris Payne, ‘The Nilotic Language Family’, (June 2002),
available online at: http://pages.uoregon.edu/dlpayne/Nilotic/NiloticFamily.htm (2 December 2013).
5
Usually, when speaking of Northern Uganda, what is meant are the regions north of Lake Kyoga. The LRA
was mostly active in ‘Acholiland’, an area consisting of Gulu, Kitgum, and Pader districts.
6
Kenneth A. Rodman and Petie Booth, ‘Manipulated Commitments: The International Criminal Court in
Uganda’, Human Rights Quarterly 35:2 (2013) 271-303, 278; Joanna R. Quinn, ‘Getting to Peace? Negotiating
with the LRA in Northern Uganda’, Human Rights Review 10:1 (2009) 55-71, 55.
7
To give an idea of Amin’s inflated sense of self-importance: he referred to himself as His Excellency President
for Life, Field Marshal Alhaji Dr. Idi Amin Dada, holder of the Victoria’s Cross, the Distinguished Service
Order, and the Military Cross, Conqueror of the British Empire. See: Patrick Keatly, ‘Obituary: Idi Amin’, The
Guardian, (18 August 2003), available online at:
http://www.theguardian.com/news/2003/aug/18/guardianobituaries (2 December 2013).
8
Allen, Trial Justice, 28.
9
Quinn, ‘Negotiating with the LRA’, 55.
10
Allen, Trial Justice, 28-29.
11
Rodman and Booth, ‘Manipulated Commitments’, 278.
3
105
mostly Lwo-speaking northern army.12 The fighting concentrated in the so-called Luwero Triangle, a
region just north of the nation’s capital Kampala. Here, in 1981, Obote carried out Operation Bonanza,
using his army’s Acholi to conduct large-scale massacres against civilians, which left between 300.000
and 500.000 people dead.13 Although in 1985 an Acholi general called Tito Okello toppled Obote’s
dictatorship and tried to stop the NRA insurgency by giving in to some of its demands, Museveni’s NRA
still marched on Kampala, taking it in January 1986.14 Museveni immediately conducted retaliatory
massacres against the Lwo-speakers, thus setting the stage for new insurgencies, this time mostly from
the north.15 Thus, the civil war in Northern Uganda to which this paragraph now turns, “is rooted in a
long-standing political, economic, and ethnic divide”.16
The early years of Kony’s insurgency, 1986-1994
Shortly after Museveni’s overthrow of the Okello regime, a man named Joseph Kony would enter the
annals of Uganda’s history. Born in 1961, in a small village in Gulu district called Odek, he was an
ethnic Acholi and a resident of Acholiland.17 Little is known about his father, a man named Luizi Obol,
although some information indicates that he was a catechist who had seventeen children by three
different wives. Luizi probably served in the King’s African Rifles, the colonial British army active in
the Second World War, before going back to Odek to raise cattle.18 Even less is known about Kony’s
mother, who goes by the name of Nora.19 In any way, Kony does not seem to have had a particularly
close connection to either his mother or his father. Kony’s family was somewhat exceptional. It was
shunned by the rest of the village – both out of respect and fear – because one of Kony’s many brothers
was a witchdoctor, which gave the family a special place in the village’s social fabric.20 Witchdoctors
like Kony’s brother played – and to a large extent still play – an important role in Acholiland, as in many
other segments of East African society, for their supposed ability to communicate with the spirit world.21
Matthew Green, The Wizard of the Nile: The Hunt for Africa’s Most Wanted (London: Portobello Books,
2008) 74.
13
Quinn, ‘Negotiating with the LRA’, 56.
14
Aili Mari Tripp, Museveni’s Uganda: Paradoxies of Power in a Hybrid Regime (Boulder: Lynne Rienner
Publishers, 2010) 151-152. According to Tim Allen and Koen Vlassenroot, this move on Kampala despite
Okello’s attempt at negotiations is evidence for the Acholi that Museveni cannot be trusted. See: Tim Allen and
Koen Vlassenroot, ‘Introduction’, in: Tim Allen and Koen Vlassenroot (eds.), The Lord’s Resistance Army:
Myth and Reality (London: Zed Books, 2010) 1-21, 7.
15
Adam Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’, Ethics and International Affairs
21:2 (2007) 179-198, 180; Clark, ‘Re-Framing the Debate’, 142; Sverker Finnström, ‘An African hell of colonial
imagination? The Lord’s Resistance Army in Uganda: another story’, in: Tim Allen and Koen Vlassenroot
(eds.), The Lord’s Resistance Army: Myth and Reality (London: Zed Books, 2010) 74-89, 77-78.
16
Christopher Blattman, ‘From Violence to Voting: War and Political Participation in Uganda’, American
Political Science Review 103:2 (2009) 231-247, 232.
17
Ruddy Doom and Koen Vlassenroot, ‘Kony’s message: a new Koine? The Lord’s Resistance Army
in northern Uganda’, African Affairs 98:390 (1999) 5-36, 20.
18
Matthew Green notes that this amount of wives and children is not an exceptional number in Acholiland. See:
Green, The Wizard of the Nile, 35, 121.
19
Ibid., 215.
20
Doom and Vlassenroot, ‘Kony’s Message’, 20.
21
Ibid., 20-21
12
106
Many Acholi have a firm belief in an all-consuming presence of a large amount of different spirits (jogi),
which are involved in almost all aspects of life. Evil spirits, or cen, are responsible for causing negative
events, while good jogi are associated with more positive events.22 The spiritual world has furthermore
been syncretized with religions brought by the colonizers. Christianity and Islam have informed the
traditional religions in Acholiland and have had a lasting effect on the way in which Acholi understand
the world. One of the most prominent examples of this is the inclusion of the Christian Holy Spirit, or
Tipu maleng, in the spiritual world.23
However, such spiritual worldviews coexist with more ‘modern’ ones.24 For example, many
Ugandans will still seek medical help for diseases, but someone “may still want to know why her child
died and not her neighbour’s”.25 Mediums like Kony’s brother, called ajwaki’s or nebi, are believed to
be able to interpret the will of the spirits, help people in pleasing them, and sometimes even heal the
sick, giving them an important and powerful role in Acholi society.26 It is not surprising, therefore, that
the world of ajwaki appealed to Kony. As a kid, Kony was already special. He was usually reluctant to
join in kids’ fights – he claimed not see the use of fighting – and was renowned for his oratory skills and
dance moves.27 According to Kony himself, he was called by the spirits somewhere in his teenage years.
They forced him to drop out of school and start healing people. When he was in his twenties, and he
witnessed the rise of Museveni, these spirits called on him to fight the government.28 However, he was
definitely not the first Ugandan, nor the first Acholi to do so.
The first years of Museveni’s rule actually appeared to bring back a sense of normality to
Uganda. After Amin’s brutal terror and the civil war under Obote – both accompanied by severe
economic disasters and civilian suffering – the economic boom of the late 1980s and his apparent openmindedness made Museveni look like a godsend to many Ugandans, especially to those in the south.29
Numerous Ugandans in the north thought differently, however. Museveni’s dictatorial rule –he quickly
abolished multi-party elections after gaining power – sparked as many as 27 armed insurgencies, the
most devastating of which took place in the north.30 Already in 1986, the persecution of Acholi and
Langi in Northern Uganda by Museveni’s NRA – to some extent as retaliation for the Luwero massacres
– was reason for the Ugandan People’s Democratic Army (UPDA) to wage a conventional insurgency
against the government in Kampala. This insurgency ended in a negotiated settlement between the NRA
22
Green, The Wizard of the Nile, 36-39.
Allen, Trial Justice, 31.
24
Doom and Vlassenroot, ‘Kony’s Message’, 17.
25
Allen, Trial Justice, 31. See also: Green, The Wizard of the Nile, 37.
26
Doom and Vlassenroot, ‘Kony’s Message’, 17.
27
Green, The Wizard of the Nile, 35.
28
Ibid., 36.
29
Blattman, ‘From Violence to Voting’, 232
30
Quinn, ‘Negotiating with the LRA’, 56. She gets this number from: Zachary Lomo and Lucy Hovil, Behind
the Violence: Causes, Consequences and the Search for Solutions to the War in Northern Uganda, Refugee Law
Project Working Paper no. 11, (February 2004), available online at:
http://www.issafrica.org/uploads/Mono99.pdf (2 December 2013).
23
107
and the UPDA in 1988, which offered UPDA-fighters amnesty in return for surrender.31 Yet, the secular
UPDA was less influential in Northern Uganda than violent spiritual movements led by ajwaki’s.
Numerous people declared themselves to be witchdoctors, their popularity fed by the insecurity and
upheaval that marked the 1980s in Northern Uganda.32 One of these ajwaki’s was Alice Auma
‘Lakwena’, who led the Holy Spirit Movement (HSM) in an unconventional guerrilla campaign against
the government, which she considered ‘impure’.33 Alice, three years older than Kony, claimed she was
possessed by multiple spirits, most notably ‘the Messenger’, or in Acholi: ‘Lakwena’.34 These spirits
instructed her on which rituals had to be performed on fighters, but also gave advice on which targets
needed to be attacked next. In a short time, she attracted a mass following in the north, holding prayer
meetings at ‘yards’, where she anointed her followers with shea-butter oil, “promising that if they were
pure, bullets would not penetrate them” (to be pure meant to refrain from alcohol, drugs, and sexual
intercourse, among many other things).35 As such, the ‘spiritual order’ of the HSM served to regulate
the group’s internal and external behavior and advance group cohesion and discipline.36In 1987, Alice’s
HSM moved on Kampala. In the last week of October, however, the NRA was able to stop her in a battle
near Jinja. Alice was wounded, but escaped.37
Both the UPDA and, primarily, Alice’s HSM are crucial for understanding Kony’s Lord’s
Resistance Army, especially for its formative years.38 At the time Kony started fighting, he was but a
small pawn compared to Alice and the UPDA. Matthew Green, one of the few Western people to have
spoken to Kony, reports the following story about the moment Kony decided to take up (spiritual) arms
against the government
“One day, Kony summoned his neighbours to the family homestead.
‘He gathered people to tell them that he had received a new spirit, the Holy Spirit, which had come to
him, so that he could go and fight to overthrow the government. […] His voice was coming from his
mouth, but it was not his normal voice.’”39
Kony seems to have tried to profit from the HSM’s immense popularity in Acholiland. In various ways
he linked his LRA to the HSM. For example, Kony claimed to be possessed by the same ‘Lakwena’ as
Blattman, ‘From Violence to Voting’, 15-16.
Allen, Trial Justice, 33.
33
The HSM is sometimes called the ‘Holy Spirit Mobile Forces’. For more on Alice Lawkena, see: Heike
Behrend, Alice Lakwena and the Holy Spirits: War in Northern Uganda, 1985-97 (Kampala: Fountain
Publishers, 1999); Tim Allen, ‘Understanding Alice: Uganda’s Holy Spirit Movement in context’, Africa 61:3
(1991) 370-399.
34
Supposedly, “Lawkena is the spirit of an Italian who died during the First World War.” See: Doom and
Vlassenroot, ‘Kony’s Message’, 16.
35
Allen, Trial Justice, 35.
36
Kristof Titeca, ‘The spiritual order of the LRA’, in: Tim Allen and Koen Vlassenroot (eds.), The Lord’s
Resistance Army: Myth and Reality (London: Zed Books, 2010) 59-73, 62-71.
37
Allen, ‘Understanding Alice’, 373.
38
Finnström, ‘Another story’, 77.
39
Green, The Wizard of the Nile, 39-40.
31
32
108
Alice, who granted him similar powers. It was also suggested that Alice and Kony were related by blood,
with some claiming that Alice was a cousin of Kony.40 Moreover, Alice and Kony shared a similar
message: they preached that Acholi society had to be purified of evil influences, which required the
overthrow of Museveni’s ‘impure’ government and the moral rejuvenation of the Acholi, if needed by
violence.41 Kony added to this that the Ten Commandments should be considered as a guide for
governing a post-Museveni country.42 Kony’s similarities with the immensely popular HSM lent him
some popular support in his first days as a rebel, although this support was still considerably less than
the support Alice had commanded.43 To improve this situation, Kony even tried to ally himself to Alice,
but he was turned down, because Alice saw him as an ‘evil’ ajwaki.44 Still, by early 1988, when both
the UPDA and the HSM had been defeated, Kony was effectively the only important Acholi insurgency
remaining. Defeated UPDA- and HSM-rebels, who did not want to accept the government’s demands,
flocked to Kony, strengthening the LRA with experienced guerilla fighters.45 Indeed, one of the UPDA’s
most effective commanders, Odong Latek, joined the LRA and helped Kony train his fighters in guerrilla
tactics, significantly increasing the group’s military capabilities.46
During the LRA’s first years, its operations mostly consisted of small-scale guerilla actions
against NRA-targets. The brutality which would mark the group’s later actions, was still absent in these
days. Two things changed this. The first was that Museveni tried to cover up the problems in the north,
a symptom of which was the appointment of the controversial and seemingly powerless Betty Bigombe
as Minister of State for Pacification of the Northern Uganda.47 The second was that, to quell the
insurgency, Kampala initiated Operation North, in 1991. During this operation, the government formed
so-called ‘Arrow Groups’, lightly armed Acholi self-defense militias which had to defend the civilian
population from violence perpetrated by the LRA.48 The apparent betrayal of the Acholi angered Kony,
and he retaliated by stepping up violence against civilians, who were now considered to be ‘impure’ as
well.49 People suspected of collaborating with the government were punished with brutal mutilations:
anyone who talked to the government, had their lips cut off; owning a bike – associated with its use to
Ruddy Doom and Vlassenroot clearly state that Alice is Kony’s cousin. See: Doom and Vlassenroot, ‘Kony’s
Message’, 20. Later research, however, contradict this claim. Green, who has seen some family trees of Kony,
concludes that there seems to be some sort of familial relation, which is hard to pin down. Green, The Wizard of
the Nile, 79. Allen confirms the haziness of the relation, but suggests that “Alice and Kony share a grandfather
on their mothers’ side”. Allen, Trial Justice, 37.
41
Doom and Vlassenroot, ‘Kony’s Message’, 22.
42
Allen, Trial Justice, 43.
43
Doom and Vlassenroot, ‘Kony’s Message’, 23.
44
Allen, Trial Justice, 38-39.
45
Blattman, ‘From Violence to Voting’, 232.
46
Rodman and Booth, ‘Manipulated Commitments’, 279.
47
Allen and Vlassenroot, ‘Introduction’, 11.
48
Rodman and Booth, ‘Manipulated Commitments, 279-280.
49
Branch, ‘The Politics of ICC Intervention’, 180; Philipp Kastner, International Criminal Justice in bello?: The
ICC between Law and Politics in Darfur and Northern Uganda (Leiden: Martinus Nijhoff Publishers, 2012) 21;
Rodman and Booth, ‘Manipulated Commitments’, 279-280.
40
109
inform the government of LRA attacks – resulted in the chopping off of legs, etc.50 Moreover, the LRA,
lacking significant voluntary support, started using large-scale abduction as a means of recruitment.
Kony’s fighters abducted scores of children, men and women, using them as fighters, sex slaves, but
sometimes also as short-term porters.51 These abductees were often forced to commit atrocities,
undergoing initial rites such as the killing their own parents or fellow abductees to harden them and
make them irrevocably part of the LRA.52 At the same time, the government’s NRA was also implicated
in crimes against civilians. Acholi suspected of involvement with the insurgency were massacred by
government forces and innocent civilians were arbitrarily tortured, beaten, raped, and killed.53
Peace talks, continued violence, and forced displacement, 1994-2000
During this escalation of violence, Betty Bigombe tried to start negotiations between Kampala and the
LRA. She generally abstained from violent policies, instead “keeping a certain distance from all interest
groups”, while she remained “willing to talk to anyone”.54 This position seemed to pay off, and between
1988 and 1996 various peace accords, limited in scope, were attempted.55 In 1993-1994, Bigombe came
very close to reaching a negotiated settlement. There was a mood of reconciliation in Northern Uganda.
LRA fighters were able to visit several Northern Ugandan towns, and were seen fraternizing with NRA
soldiers.56 Even though the peace talks were very promising and a ceasefire was reached, in the end, the
talks backfired. In January 1994, Museveni ordered an ultimatum, demanding that the rebels lay down
their weapons unconditionally within a week.57 Kony was furious. He called Bigombe on his satellite
phone, and said: “Unless we demonstrate to people that we are still here, the government will never
accept peace talks. I’m going to do things that will shock the world.”58 Why did the 1994 peace talks,
which seemed to have such a good chance of success, fail? Both Museveni and Kony are to blame.
Museveni was never really interested in a negotiated settlement, preferring a military solution instead.
The army, increasingly important as a bastion of support for Museveni’s rule, needed to be kept busy,
and the fight against the ‘brutal’ and ‘savage’ LRA legitimized his authoritarian rule.59 At the same time,
50
Green, The Wizard of the Nile, 171.
Blattman, ‘From Violence to Voting’, 233-235. See also: Allen, Trial Justice, 60-66; Phuom Pham, Patrick
Vinck, and Eric Stover, ‘The Lord’s Resistance Army and forced conscription in Northern Uganda’, Human
Rights Quarterly 30:2 (2008) 404-411.
52
For the various phases the LRA abductees are forced to go through in their transformation from child to
fighter, see: Opis Oloya, Child to Soldier: Stories from Joseph Kony’s Lord’s Resistance Army (Toronto:
University of Toronto Press, 2013) 78-95.
53
Branch, ‘The Politics of ICC Intervention’, 181.
54
Allen and Vlassenroot, ‘Introduction’, 11.
55
Quinn, ´Negotiating with the LRA´, 59,
56
Allen, Trial Justice, 48.
57
Kastner, The ICC between Law and Politics, 21-22; Rodman and Booth, ‘Manipulated Commitments’, 281.
58
Green, The Wizard of the Nile, 173. See also: Doom and Vlassenroot, ‘Kony’s Message’, 25.
59
Allen and Vlassenroot, ‘Introduction’, 12; Branch, ‘The Politics of ICC Intervention’, 185; International Crisis
Group, A Strategy for Ending Northern Uganda’s Crisis, Africa Briefing No. 35, (11 January 2006), available
online at: http://www.crisisgroup.org/~/media/Files/africa/horn-ofafrica/uganda/B035%20A%20Strategy%20for%20Ending%20Northern%20Ugandas%20Crisis.pdf (2 December
2013) 12; Andrew Mwenda, ´Uganda´s politics of foreign aid and violent conflict: the political uses of the LRA
51
110
Kony also opted for the maximization of his gains. This meant continued abductions and violence for
self-sustainment. He was rather lackluster about peace talks: the very reason Museveni had issued the
ultimatum was that Kony had asked for a few months of postponement before signing the peace
agreement.60 Museveni suspected that Kony would use the time to prepare and rearm for more
insurgency operations.
There may have been some truth in this suspicion. In the first half of the 1990s, Sudan was
emerging as a major spoiler in the Northern Ugandan peace process. The Sudan-Uganda border area
was increasingly a region in which the country’s respective governments waged a proxy war against
each other.61 The government of President Omar al-Bashir in Khartoum was waging a counterinsurgency
campaign in South Sudan. To destabilize the Sudanese government, Museveni supported the main rebel
group there, called the Sudanese People’s Liberation Army (SPLA).62 At the same time, Khartoum used
various proxy militias – one of them the LRA – to fight the SPLA.63 Kony agreed to fight the SPLA,
and Khartoum gave him refuge from Uganda’s government troops in South Sudan in return, as well as
large amounts of weapons and money.64 There is some evidence that during the 1994 peace talks the
LRA was reorganizing itself in South Sudan, being resupplied by Khartoum, in this way acquiring the
means to “shock the world” as Kony had promised Bigombe.65
The period after 1994 saw some of the LRA’s worst crimes. For example, in April/May 1995,
LRA fighters attacked a village called Atiak, where they murdered hundreds of villagers and burned
their homes. The victims – including women and children, even some babies – were mostly clubbed or
chopped to death.66 The LRA also stepped up its campaign of abductions. In one incident, some 160
young girls, were abducted from St. Mary’s College in Aboke, located in Lira district.67 In both
instances, despite the fact that they were close by, government forces were either too late or unwilling
rebellion’, in: Tim Allen and Koen Vlassenroot (eds.), The Lord’s Resistance Army: Myth and Reality (London:
Zed Books, 2010) 45-58, 51.
60
Allen, Trial Justice, 49.
61
Congo was also involved in this proxy warfare. See: Gerard Prunier, ‘Rebel movements and proxy warfare:
Uganda, Sudan and the Congo (1986-1999)’, African Affairs 103:412 (2004) 359-383.
62
Allen and Vlassenroot, ‘Introduction’, 12; Kastner, The ICC between Law and Politics, 19.
63
Cecily G. Brewer, ‘Peril by Proxy: Negotiating Conflict in East Africa’, International Negotiation 16:1 (2011)
137-167, 145-147.
64
Global politics were to some extent responsible for these more regional considerations. According to Mwenda,
“[t]he Cold War ended in 1990, and this shifted US geostrategic concerns from the threat of communism to the
spread of Islamic extremism. [After Omar al-Bashir took power in Sudan, the US] responded by labeling the
[Islamic] regime in Khartoum a threat, and thus began to finance the rebel [SPLA]. Uganda became the conduit
of this assistance. In retaliation, Sudan began to support the LRA[.]” See: Mwenda, ‘Uganda’s politics of foreign
aid’, 49.
65
Green, The Wizard of the Nile, 174-176.
66
Allen and Vlassenroot, ‘Introduction’, 12.
67
The LRA’s apparent focus on abducting children, turning them into child soldiers and sex slaves, seems
particularly abhorrent. Yet, according to Allen, this must not be overemphasized. Children do not make up the
majority of the people abducted by the LRA (although they do make up the majority of the people ‘kept’).
Moreover, the abduction of children is a strategic choice. Not only does this terrorize the community, the
children are seen as ‘blank spaces’, who can be raised according to the LRA norms and values and who are not
yet contaminated by ‘impure’ Acholi practices. See: Allen, Trial Justice, 60-66.
111
to react.68 In 1996, in reaction to this campaign of increased violence, the Ugandan People’s Defense
Forces (UPDF, the NRA’s new name according to the 1995 constitution) initiated a policy of systematic
concentration of the supposedly hostile population in Northern Uganda. 69 Inhabitants of the rural areas
were forced to migrate towards mass camps for so-called Internally Displaced Persons (IDP’s). Those
who did not want to migrate, were forced to, in “a campaign of murder, intimidation, and the bombing
and burning of entire villages”.70 Soon, the number of people in the IDP camps numbered close to 1.5
million and at some point almost 90 percent of the population of Northern Uganda was stuck in the
camps.71 Ostensibly, these forced displacements were meant to protect the civilians from abductions and
attacks by the LRA, but in many ways the civilians’ living conditions only worsened. The IDP camps
were poorly sanitized, causing a large number of diseases, and there was little food, although large
operations by aid agencies such as the World Food Programme relieved these conditions somewhat.72
In the 2000s, a thousand people died every week from conflict-related disease and malnutrition.73
Moreover, the UPDF and local defense groups were unable to protect the civilians in the camps from
LRA attacks.74 For example, a camp of 15.000 IDP’s would be protected by about 14 soldiers, who lived
in the middle of the camp, raising the question of who was supposed to protect who.75 The deteriorated
security situation led to the phenomenon of ‘night commuting’. Every day large groups of children
walked miles to congregate at a safe place in order to protect themselves from abduction.76 The UPDF,
failing to protect the civilians from the LRA, has in fact itself been implicated in large-scale abuses of
civilians in the camps. Beatings, torture, rape, and want-on killings were perpetrated on a daily basis,
further intensifying the suffering of the people in the camps.77
During almost the entire 1990s, the international political response to the violence and suffering
taking place in Northern Uganda, remained minimal. This had much to do with the fact that Museveni
succeeded in keeping the disaster in the north beyond the international community’s view, acting like
Allen and Vlassenroot, ‘Introduction’, 12.
Mwenda, ‘Uganda’s politics of foreign aid’, 46.
70
Branch, ‘The Politics of ICC Intervention’, 181.
71
Allen, Trial Justice, 53; Clark, ‘Re-Framing the Debate’, 142.
72
It has been argued that the policy of the aid agencies – feeding the people in the camps but not doing anything
about the causes of their suffering, namely the forced concentration into large unprotected and undersupplied
IDP camps – to some extent only worsened the situation, institutionalizing the camps and helping Museveni to
maintain the status quo. Chris Dolan, for example, has stated: “Like doctors in a torture situation, they appear to
be there to ease the suffering of victims, but in reality they enable the process to be prolonged by keeping the
victim alive for further abuses.” Quoted in: Green, The Wizard of the Nile, 91. See also: Chris Dolan,
Understanding War and Its Continuation: The Case of Northern Uganda (London: Development Studies
Institute, London School of Economics, 2005); Mwenda, ‘Uganda’s politics of foreign aid’, 55-56.
73
Nick Grono and Adam O’Brien, ‘Justice in Conflict? The ICC and Peace Processes’, in: Nicholas Waddell and
Phil Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa, (London: Royal African Society,
2008) 13-20, 14-15.
74
Branch, ‘The Politics of ICC Intervention’, 181.
75
Mwenda, ‘Uganda’s politics of foreign aid’, 55.
76
Green, The Wizard of the Nile, 89; Quinn, ‘Negotiating with the LRA’, 57.
77
Branch, ‘The Politics of ICC Intervention’, 181.
68
69
112
the LRA was everything but defeated.78 When Museveni accepted demands in May 1987 from the
International Monetary Fund (IMF) to conduct Western-styled market reforms in Uganda, large amounts
of foreign aid from Western donors were made available. In Southern Uganda, this led to a quick
economic recovery.79 Moreover, Museveni looked like a good example of the new generation of African
presidents: his apparent open-mindedness – he was talking about solutions to AIDS while the subject
was still a big taboo in the rest of Africa80 - and regular exhortations to African leaders who refused to
give up power, made him look like the ideal partner for the West.81 While its neighbors Rwanda and the
Democratic Republic of Congo (DRC) were plagued by political upheaval and large-scale violence,82
and Sudan increasingly became – in American words – a “state-sponsor of terrorism”, Museveni’s
Uganda looked like a bastion of peace and stability. All these factors made Museveni something of a
‘Darling of the West’. In the words of one observer, he became “arguably the most influential head of
state in sub-Saharan Africa after Nelson Mandela”.83 However, this idolization of Museveni caused the
crisis in the north to be all but forgotten, if not ignored. News reports issued around the turn of the
millennium often called the situation in Northern Uganda “the most forgotten crisis in the world”.84
Amnesty, further counter-insurgency operations, and ICC involvement, 2000-2006
The failure of Museveni to defeat the LRA militarily and the absence of international involvement led
to more regional peace initiatives. After Bigombe’s failed peace talks in 1994, the Acholi Religious
Leaders Peace Initiative (ARLPI), an organization of tribal elders and religious leaders supposedly
representing the victims of the war, pleaded for the abandonment of the military option in favor of
traditional reconciliation. In 2000, the ARLPI succeeded in getting the government to enact an Amnesty
Law, overcoming significant opposition from Museveni.85 Granted overwhelming popular support by
the Acholi community, the Amnesty Law would allow anyone who renounced violence and abandon
the LRA – regardless of rank or crimes committed – to return to his or her community without having
to fear criminal prosecution.86 Anyone who accepted the terms, would receive an ‘amnesty package’,
Oliver Furley, ‘Uganda: The Struggle for Peace’, in: Oliver Furley and Roy May (eds.), Ending Africa’s Wars:
Progressing to Peace (Aldershot: Ashgate Publishing Ltd., 2006) 116-133, 120-121.
79
Mwenda, ´Uganda´s politics of foreign aid’, 46-47.
80
Furley, ‘Uganda: The Struggle for Peace’, 130-131.
81
Sandrine Perrot, ‘Northern Uganda: a ‘forgotten conflict’, again? The impact of the internationalization of the
resolution process’, in: Tim Allen and Koen Vlassenroot, The Lord’s Resistance Army: Myth and Reality
(London: Zed Books, 2010) 187-204, 191.
82
In the end, it turned out that Museveni was as deeply involved in the exploitation of the DRC as his neighbors.
See: Filip Reyntjens, The Great African War: Congo and Regional Geopolitics, 1996-2006 (Cambridge:
Cambridge University Press, 2010).
83
Green, The Wizard of the Nile, 85-86.
84
Furley, ‘Uganda: The Struggle for Peace’, 118.
85
Kasaija Phillip Apuuli, ‘Peace over Justice: The Acholi Religious Leaders Peace Initiative (ARLPI) vs. the
International Criminal Court (ICC) in Northern Uganda’, Studies in Ethnicity and Nationalism 11:1 (2011) 116129, 121-122.
86
Branch, ‘The Politics of ICC Intervention’, 184; Clark, ‘Re-Framing the Debate’, 145; Katherine Southwick,
‘Investigating War in Northern Uganda: Dilemmas for the International Criminal Court’, Yale Journal of
International Affairs 1 (2005) 105-119, 109.
78
113
consisting of some money and other things that would help the reintegration of the former fighter.87
First, however, they would have to go through a traditional reconciliation ceremony, called mato oput,
which involves rituals such as stepping on eggs – signifying a fresh start –, consumption of a bitter
tasting root, the confession of guilt and the paying of compensation, presided over by elders and chiefs.88
The Amnesty Commission, responsible for overseeing the execution of the Amnesty Law, produced
some results: tens of thousands of former rebel fighters have accepted the amnesty since 2000, although
these included only a few top commanders.89 Still, problems remain. One of these is the fact that Kony
has threatened his fighters with retaliation if they turn themselves over to the Amnesty Commission,
because the amnesty forms a threat to the cohesion and internal discipline of the LRA. The threat of
violence has deterred some fighters from defecting.90 Also, the Ugandan government has been accused
of recruiting former abductees into the UPDF’s 105th battalion, making use of their military skills.91
In addition, as was noted earlier, Museveni strongly opposed the Amnesty Law. In his eyes,
military operations remained the only viable option to fight the LRA.92 Once again, it turned out that
Museveni did not have any real interest in a peaceful resolution of the conflict. To quote Ugandan
journalist Andrew Mwenda, “What does he lose [with the war in the north]?”93 In March 2002, Museveni
initiated Operation Iron Fist, a large-scale military operation, which involved over ten thousand troops.
Iron Fist would have to defeat the LRA once and for all. Several factors coincided to give this operation
a good chance of success. First, in the late 1990s international pressure on Sudan greatly increased,
eventually causing Khartoum to officially end its support of the LRA. In 1999, the American Carter
Center managed to bring about the Nairobi agreement between Kampala and Khartoum, which
stipulated that they would both cease their support for proxy militias in each other’s countries.94
Although both governments did not actually alter their respective policies of proxy warfare substantially,
the agreement opened the door for Museveni to gain Sudanese agreement to pursue the LRA into its
territory during Operation Iron Fist, thus denying the LRA refuge.95 An important reason for Khartoum
87
Allen, Trial Justice, 125.
According to Allen, the ‘traditional’ Acholi process of mato oput is different from the ceremony adapted to
‘forgive’ former LRA fighters and abductees. For example, it did not include the stepping on eggs, a ceremony
apart called nyono tong gweno, which was used in other circumstances. In addition, the process of mato oput has
its own pragmatic and moral problems. See: Allen, Trial Justice, 130-131, 160-168. See also: Steven C. Roach,
‘Multilayered Justice in Northern Uganda: ICC Intervention and Local Procedures of Accountability’,
International Criminal Law Review 13:1 (2013) 249-268, 251-258.
89
Michael Otim and Marieke Wierda, ‘Justice at Juba: International Obligations and Local Demands in Northern
Uganda’, in: Nicholas Waddell and Phil Clark (eds.), Courting Conflict? Justice, Peace and the ICC in Africa,
(London: Royal African Society, 2008) 21-28, 22. See also: Tim Allen and Mareike Schomerus, A hard
homecoming. Lessons learned from the reception centre process in Northern Uganda – and independent study,
Management Systems International, (15 August 2006), available online at:
http://pdf.usaid.gov/pdf_docs/PNADI241.pdf (2 December 2013).
90
Blattman, ‘From Violence to Voting’, 234.
91
Allen, Trial Justice, 77-78.
92
Kastner, The ICC Between Law and Politics, 22-23.
93
Green, The Wizard of the Nile, 119.
94
Brewer, ‘Peril by Proxy’, 148-149.
95
Kastner, The ICC Between Law and Politics, 23-24.
88
114
to move from spoiler to facilitator, was that it hoped to end its international isolation resulting from its
alleged support of terrorism. The fight against terrorism gained increased international importance after
Jihadi terrorists attacked the United States with several suicide operations on 11 September 2001 and
the administration of George W. Bush declared “war on terror” shortly after.96 The LRA was included
on the USA Patriot Act Terrorist Exclusion List, which provided the rationale to significantly increase
U.S. support for Kampala. During Operation Iron Fist, the U.S. even provided logistical support and
military advisers to the UPDF.97 Together with the support of Khartoum, the U.S. support for Operation
Iron Fist made it one of the strongest military measures taken against the LRA to date. But, although it
dealt a heavy blow to the LRA and UPDF troops came very close to capturing Kony, the operation did
not succeed in defeating the LRA.98 The operation did lead to an increase in human rights abuses against
civilians by both the LRA and the UPDF, however.99
Kony was both angered and frightened by the UPDF’s Operation Iron Fist. During the initial
phases of the government action, Kony disappeared into the Imatong Mountains near the Sudan-Uganda
border, from where he could conduct an excellent defense due to the area’s ruggedness and
inaccessibility.100 From there, he planned the ‘counter-punch’ against the government. Once again, Kony
retaliated mostly against civilians. By conducting incursions into Northern Uganda – committing
massacres, mutilations, and abductions along the way – the LRA terrorized civilians living in the SudanUganda border area. Over 850 attacks were reported in this period.101 In one, not unusual case, the LRA
attacked the town of Kitgum, where forty-eight people were hacked to death on 25 July 2002, with
babies being flung against trees.102 Two years later, on 21 February 2004, Kony directed his fighters
against Barlonya camp, where some two hundred unarmed people were killed.103 The return of the LRA
to Northern Uganda as a result of Operation Iron Fist, led some Northern Ugandans to accuse the
government of stirring up the hornet’s nest of the LRA.104 At the same time, to protect itself from the
furious UPDF attacks, the LRA moved its most important bases north of the Sudanese ‘Red Line’, the
northernmost point of deployment for UPDF troops under the agreement between Kampala and
96
Allen, Trial Justice, 51.
Allen and Vlassenroot, ‘Introduction’, 14.
98
Furley, ‘Uganda: Progressing to Peace’, 116.
99
Human Rights Watch, Uprooted and Forgotten, 14-36.
100
Green, The Wizard of the Nile, 147; International Crisis Group, Northern Uganda: Understanding and
Solving the Conflict, Africa Report No. 77, (14 April 2004), available online at:
http://www.crisisgroup.org/~/media/Files/africa/horn-ofafrica/uganda/Northern%20Uganda%20Understanding%20and%20Solving%20the%20Conflict.pdf (2
December 2013) 7.
101
Matthew Brubacher, ‘The ICC investigation of the Lord’s Resistance Army: an insider’s view’, in: Tim Allen
and Koen Vlassenroot, The Lord’s Resistance Army: Myth and Reality (London: Zed Books, 2010) 262-277,
270.
102
Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the
International Criminal Court’, The American Journal of International Law 99:2 (2005) 403-421, 408-409.
103
Allen, Trial Justice, 3.
104
Human Rights Watch, Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda,
(20 September 2005), available online at: http://www.hrw.org/sites/default/files/reports/uganda0905.pdf (2
December 2013) 9-10.
97
115
Khartoum.105 In the end, despite the fact that he was now branded as a terrorist by the U.S., Kony
managed to maintain the LRA’s operational capability from his hide-out in the Imatong Mountains,
mostly because of continued support from Omar al-Bashir’s government and a stepped-up abduction
effort to replenish its ranks.106
In the same year that Kony had to defend himself from Operation Iron Fist, a development in
international law created an institution which would have a significant impact on the situation in
Northern Uganda. On 1 July 2002 the Rome Statute entered into force, which gave the International
Criminal Court (ICC) the mandate to start its operations.107 The ICC quickly recognized the situation in
Northern Uganda as a potential case for investigation, since it seemed obvious to everyone that crimes
falling within the Court’s jurisdiction had been committed in the conflict.108 In December 2003, the
Ugandan government decided to refer the situation in Northern Uganda to the jurisdiction of the ICC,
declaring:
Having exhausted every other means of bringing an end to this terrible suffering, the Republic of Uganda
now turns to the newly established ICC and its promise of global justice. Uganda pledges its full
cooperation to the Prosecutor in the investigation and prosecution of LRA crimes, achievement of which
is vital not only for the future progress of the nation, but also for the suppression of the most serious
crimes of concern to the international community as a whole. 109
The ICC was happy to accept the referral, seeing it as a chance to prove its viability and effectiveness
as a new institution of international law.110 In January 2004, the referral was made public at a joint press
conference in London by Museveni and the ICC Chief Prosecutor, Luis Moreno-Ocampo, who declared
to accept this ‘situation concerning the Lord’s Resistance Army’.111
The joint press conference and the initial naming of the investigation aroused suspicion about
the ICC’s alleged partiality. It seemed that the ICC was only investigating crimes committed by the
LRA, leaving the UPDF out of the investigation. Many questioned Museveni’s motives for referring the
situation to the ICC.112 He was accused of instrumentalizing the ICC, using it to frustrate the efforts of
the Amnesty Commission.113 The ICC, moreover, was suspected of partiality, because of its dependence
Brubacher, ‘An Insider’s View’, 270.
Akhavan, ‘First State Referral’, 409.
107
The creation of the ICC, its legal regime and the Court’s peculiarities will be discussed further below, in
§3.3.1.
108
Akhavan, ‘First State Referral’, 404; Allen, Trial Justice, 82-83; Brubacher, ‘An Insider’s View’, 268-269.
109
Quoted in: Branch, ‘The Politics of ICC Intervention’, 182-183.
110
Akhavan, ‘The First State Referral’, 404-406.
111
Allen, Trial Justice, 82.
112
See, inter alia, Phil Clark, ‘Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic
Republic of Congo and Uganda’, in: Nicholas Waddell and Phil Clark (eds.), Courting Conflict? Justice, Peace
and the ICC in Africa, (London: Royal African Society, 2008) 37-45, 42-43; Rodman and Booth, ‘Manipulated
Commitments’, 284-286.
113
Clark, ‘The ICC and Case Selection’, 42; Roach, ‘Multilayered Justice’, 187.
105
106
116
on the Ugandan government.114 When the Court issued its first indictments, which were initially issued
under seal on 8 July 2005 but were unsealed on 13 October 2005,115 these suspicions were amplified.
The first five arrest warrants, the only ones issued so far for the conflict, all targeted members of the
LRA leadership.116 Although the ICC Prosecutor’s Office has repeatedly stressed that it investigates all
parties to the conflict, it could not properly defend itself for its seeming lack of attention for the crimes
committed by the UPDF.117 Multiple observers have argued that the forced displacement of more than
a million Northern Ugandans into IDP camps constituted a war crime under the Rome Statute.118
However, it is clear that the ICC’s dependence on the Ugandan government is too great to risk indicting
government agents. Ugandan officials have stated multiple times that any accusations against UPDF
soldiers would result in the withdrawal of the Ugandan government from the international justice
process.119 At the time of writing, the ICC has still only issued warrants against the LRA; none have
been issued against the UPDF or members of the Ugandan government.120
As was intended by Museveni, the involvement of the ICC in the Northern Ugandan civil war
resulted in a great increase of international attention for the conflict.121 It was hoped that the ICC could
contribute to ending the war by putting pressure on Sudan to stop supporting the LRA and by
decapitating the LRA, so that the rest of the LRA as an organization would wither and die.122 Moreover,
some expected that Kampala would see the increased international scrutiny as a warning against relying
too heavily on the military option. The first objective was to a large extent reached. Sudan increasingly
cooperated with the Ugandan government in denying safe havens to the LRA and it cut most of its
funding for the rebel group.123 The second and third objective have thus far not been reached, however.
The LRA, although diminished in size and capabilities, is still a functioning rebel group, and Kony
remains at large. In addition, there is no reason to believe that Museveni saw the referral as a reason to
more actively pursue peace negotiations. Rather, the criminalization of the LRA legitimized more
military operations, which were now labeled as ‘international law enforcement’.124 In May 2004, soon
after the ICC opened its investigations, the UPDF initiated Operation Iron Fist II, another immense
military operation targeting the LRA in South Sudan.125
Otim and Wierda, ‘Justice at Juba’, 22.
Brubacher, ‘An Insider’s View’, 275; Manisuli Ssenyonjo, ‘The International Criminal Court and the Lord’s
Resistance Army Leaders: Prosecution or Amnesty?’, International Criminal Law Review 7:2-3 (2007) 361-389,
366-367.
116
Allen, Trial Justice, 182-185.
117
Clark, ‘The ICC and Case Selection’, 42-43.
118
Branch, ‘The Politics of ICC Intervention’, 181; Clark, ‘The ICC and Case Selection’, 43.
119
Ibid.
120
International Criminal Court, ‘Situation in Uganda’, available online at: http://www.icccpi.int/EN_Menus/ICC/Situations%20and%20Cases/Situations/Situation%20ICC%200204/Pages/situation%20i
ndex.aspx (2 December 2013).
121
Akhavan, ‘First State Referral’, 404.
122
Branch, ‘The Politics of ICC Intervention’, 183.
123
The ICC indictment of Sudanese President Omar al-Bashir complicated this matter, however.
124
Booth and Rodman, ‘Manipulated Commitments’, 296-303; Branch, ‘The Politics of ICC Intervention’, 183.
125
Brubacher, ‘An Insider’s View’, 270.
114
115
117
Juba peace talks, the LRA’s flight from Uganda and further international involvement, 2006-today
The two Iron Fist operations, together with expanded international attention and the loss of its ally in
Sudan, greatly increased the international pressure on the LRA. Kony was desperate.126 To augment his
survival chances, he decided to move the LRA’s base of operations to the DRC and simultaneously
increase its commitment to peace talks. In September 2005, the first group of LRA fighters led by Kony’s
second-in-command Vincent Otti crossed the Nile and moved into the Garamba National Park in the
DRC Haut Uele province, where the density of the bush made effective government supervision almost
impossible.127 After Kony had joined him in early 2006, the LRA concluded that peace talks with
Kampala negotiated by the government of South Sudan128 would now be its best option.129 As was the
case with Bigombe’s peace talks in 1994, the Juba peace talks looked like they could finally bring the
war to an end. The negotiators, headed by Vice-President of South Sudan Riek Machar, succeeded in
bringing about a Cessation of Hostilities Agreement in August 2006.130 Between 2006 and 2008 the
talks resumed, and some peace finally returned to Northern Uganda.
One of the biggest issues at the table was the outstanding ICC arrest warrant. Kony demanded
that an amnesty would be part of any negotiated agreement between him and Kampala.131 The Ugandan
government, however, including President Museveni in the early days of the Juba peace talks, remained
ambiguous at this point. Some officials suggested that the Ugandan government would retrieve its ICC
referral if Kony signed a peace agreement and would extend amnesty under the 2000 Amnesty Law.132
At the same time, however, Museveni showed signs that Kony might be arrested after all: he signified
that LRA leaders indicted by the ICC would be exempt from the Amnesty Law.133 The ICC Prosecutor
was especially fervent in its refusal to accept any sort of amnesty for Kony. Luis Moreno-Ocampo has
called Kony’s demands “extortion and blackmail” and emphasized the Ugandan government’s duty and
Akhavan, ‘First State Referral’, 419.
Brubacher, ‘An Insider’s View’, 274; Ssenyonjo, ‘Prosecution or Amnesty?’, 363.
128
The Sudanese government in Khartoum and the SPLA signed a Comprehensive Peace Agreement (CAP) in
January 2005, formally ending the north-south Sudanese civil war. One of the many provisions was the creation
of a separate Government of South Sudan, headed by the former SPLA rebels, with its capital in Juba. See:
Ronald R. Atkinson, ‘‘The realists in Juba’? An analysis of the Juba peace talks’, in: Tim Allen and Koen
Vlassenroot, The Lord’s Resistance Army: Myth and Reality (London: Zed Books, 2010) 205-222, 207. In 2011,
as was agreed to in the CAP, South Sudan held a referendum to vote on its potential secession, which would turn
it into a sovereign state, independent from Khartoum. The South Sudanese voted for this independence in
January 2011. See: United Nations News Centre, ‘UN welcomes South Sudan as 193rd Member State’, (14 July
2011), available online at:
http://www.un.org/apps/news/story.asp?NewsID=39034&Cr=South+Sudan&Cr1=#.UnvpIPkrdBk (2 December
2013). It is clear that the changed regional dynamics which were a result of the CAP, gave a significant impetus
to the Juba peace talks: Khartoum’s rationale for supporting the LRA had now largely disappeared and the
LRA’s former enemies, the SPLA, were now in power in South Sudan. See: Otim and Wierda, ‘Justice at Juba’,
22-23.
129
Atkinson, ‘Juba Peace Talks’, 211; Kastner, The ICC between Law and Politics, 24.
130
Otim and Wierda, ‘Justice at Juba’, 21; Ssenyonjo, ‘Prosecution or Amnesty?’, 368-369.
131
Otim and Wierda, ‘Justice at Juba’, 21.
132
Ibid., 23; Quinn, ‘Negotiating with the LRA’, 66; Ssenyonjo, ‘Prosecution or Amnesty?’, 363-364, 371-372.
133
Akhavan, ‘First State Referral’, 410.
126
127
118
responsibility to uphold the law.134 Furthermore, the ICC Prosecutor’s Office suspected Kony of using
the Juba peace talks to regroup and rearm.135 Outside observers have noted the impossible position in
which the ICC’s refusal to accept the inclusion of an amnesty in a peace agreement put Kony and the
other indicted rebel commanders. To cite a statement that is often quoted: “Obviously, nobody can
convince the leaders of a rebel movement to come to the negotiating table and at the same time tell them
that they will appear in courts to be prosecuted.”136 In the end, Kony decided that his fate was too unclear,
and retreated from the peace talks in November 2008, citing the lack of clarity about the ICC warrants
as the main reason. This decision followed a leadership struggle between Joseph Kony and Vincent Otti,
supposedly over the negotiation strategy in Juba. The struggle ended in October 2007 with Otti’s
execution by rebels loyal to Kony.137
By then, the LRA had firmly established itself in the DRC. By 2007, it also spread to the Central
African Republic, maintaining a strong presence in regions where the countries’ respective governments
had limited control. Although seriously weakened by the Iron Fist operations, the LRA was still able to
terrorize citizens. Once again, large-scale abductions took place, giving the LRA access to fresh recruits.
After a particularly brutal episode of violence in September 2008 and an intensification of U.S. pressure,
the President of the DRC, Joseph Kabila, approvedmilitary operations by Ugandan troops against the
LRA in Congo.138 In the beginning of December 2008, with U.S. support in logistics, planning, and
intelligence, the UPDF, in cooperation with Congolese and SPLA troops – as well as forces from the
U.N. Mission in Congo, the Mission de l’Organisation des Nations Unies en RD Congo (MONUC) –
initiated Operation Lightning Thunder.139 However, the operation quickly ran into problems, and the
LRA soon retaliated, by killing, maiming, and abducting hundreds of civilians in Congo and South
Sudan in the 2008 Christmas Massacres. According to Human Rights Watch, at least 815 Congolese
civilians and 50 Sudanese civilians lost their lives in this massacre.140 Thus, despite increased pressure,
Joseph Kony and his LRA still seemed anything but defeated.
Luis Moreno-Ocampo, ‘The Role of the International Community in Assisting the International Criminal
Court to Secure Justice and Accountability’, in: René Provost and Payam Akhavan (eds.), Confronting Genocide
(Berlin: Springer, 2011) 279-289, 288.
135
Brubacher, ‘An Insider’s View’, 275-277.
136
Cited in: Allen, Trial Justice, 85-86. Indeed, Michael P. Scharf thinks it is unrealistic that leaders involved in
conflicts will accept a negotiated peace agreement if they face the risk of arrest and imprisonment after that. See:
Michael P. Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’, Cornell
International Law Journal 32 (1999) 507-527, 508. On the other hand, various proponents of international
criminal justice stress that a durable peace cannot be achieved without justice. See, for example: Payam
Akhavan, ‘The Rise, and Fall, and Rise of International Criminal Justice’, Journal of International Criminal
Justice 11:3 (2013) 527-536, 532-534; Janine Natalya Clark, ‘Peace, Justice and the International Criminal
Court: Limitations and Possibilities’, Journal of International Criminal Justice 9:3 (2011) 521-545, 543-544.
137
Clark, ‘The ICC and Case Selection’, 45, note 18; Green, The Wizard of the Nile, 184-186.
138
Human Rights Watch, The Christmas Massacres: The LRM/A attacks on civilians in northern Congo, (16
February 2009), available online at: http://www.hrw.org/sites/default/files/reports/drc0209web_0.pdf (2
December 2013) 28.
139
Human Rights Watch, The Christmas Massacres, 28; Perrot, ‘Impact of the internationalization’, 201..
140
Human Rights Watch, The Christmas Massacres, 29. See also: Ibid., 55-60.
134
119
As was noted earlier, the ICC intervention did succeed in generating much-needed international
attention for the conflict, finally giving it the attention it deserved.141 Forces from MONUC were
regularly employed against suspected LRA hide-outs and entered into an agreement with the ICC to
assist in the execution of the international arrest warrants.142 The United States, despite initial protests
against the legitimacy of the ICC, cooperated with the Ugandan government in its fight against the LRA
as part of its “war on terror”. An American military intelligence unit was deployed to Uganda, from
where it assisted the Ugandan military in Operation Lightning Thunder.143 In addition, the U.S. State
Department provided Kampala with $1.2 million to operate two helicopters, part of a counter-LRA
program adopted by the American Congress in 2010, which also provided funds for programs
encouraging LRA fighters to defect.144 In October 2011, U.S. President Barack Obama decided to send
one hundred American Special Forces to the region, where they would assist in training Ugandan troops
and also in fighting the LRA on the front lines.145 Lastly, a contingent of 5.000 African Union soldiers,
with the mission to eliminate the LRA, was deployed to the Central African Republic.146 At the time of
writing, however, Joseph Kony remains at large. In April 2013, the hunt for Joseph Kony, who is
believed to be hiding somewhere in the Central African Republic, was temporarily halted because of
political upheaval in the CAR caused by a rebel coup.147 In the most recent development, the new interim
President of the CAR, Michel Djotodia, claimed that Kony was ready to surrender. Whether this is true
remains to be seen: many LRA experts, as well as the U.S. State Department remain skeptical. 148
Although Kony is being chased closely, his still functioning LRA remains a threat to peace in the region
and civilians in the area.149
Clark, ‘Re-Framing the Debate’, 141-142.
Brubacher, ‘An Insider’s View’, 276.
143
Michael Gerson, ‘The worthy mission to get Joseph Kony’, The Washington Post, (17 October 2011),
available online at: http://articles.washingtonpost.com/2011-10-17/opinions/35276891_1_lra-joseph-konyspecial-operations-forces (2 December 2013).
144
Starting in 2010, Shannon Sedgwick Davis, an American philanthropist also recruited a private military
company to train Ugandan forces, even before the October 2011 decision to send in U.S. Special Forces.
Elizabeth Rubin, ‘How a Texas Philantropist Helped Fund the Hunt for Joseph Kony’, The New Yorker, (21
October 2013), available online at: http://www.newyorker.com/online/blogs/newsdesk/2013/10/how-a-texasphilanthropist-funded-the-hunt-for-joseph-kony.html?printable=true&currentPage=all#ixzz2ijfnrFzo (2
December 2013).
145
Gerson, ‘The worthy mission’.
146
This force is called the Regional Cooperation Initiative for the Elimination of the LRA. See: Conal Urquhart,
‘Joseph Kony: African Union brigade to hunt down LRA leader’, The Guardian, (24 March 2012), available
online at: http://www.theguardian.com/world/2012/mar/24/joseph-kony-african-union-brigade (2 December
2013).
147
Sudarsan Raghavan and Craig Whitlock, ‘Hunt for Joseph Kony, elusive African warlord, is halted’, The
Washington Post, (3 April 2013), available online at: http://articles.washingtonpost.com/2013-0403/world/38238379_1_central-african-republic-lra-dominic-ongwen (2 December 2013).
148
J. Dana Stuster, ‘Don’t Believe the Hype: Joseph Kony Isn’t About to Surrender’, Foreign Policy, (21
November 2013), available online at:
http://blog.foreignpolicy.com/posts/2013/11/21/dont_believe_the_hype_joseph_kony_isnt_about_to_surrender
(2 December 2013).
149
Mark Tran, ‘Joseph Kony cannot be swept under the carpet, warns DRC priest turned activist’, The Guardian,
(6 November 2013), http://www.theguardian.com/global-development/2013/nov/06/joseph-kony-drc-abbebenoit-kinalegu (2 December 2013).
141
142
120
In conclusion
The rule of Yoweri Museveni has been powerfully challenged in Northern Uganda by Joseph Kony’s
Lord’s Resistance Army. Kony was central to this group, a spiritual guide, military leader and its almost
completely undisputed master. Supported by Sudan, the rebel group conducted a brutal campaign of
terror during the 1990s, while the Ugandan army reacted with a series of counterinsurgency campaigns.
The UPDF forced the people of Acholiland into IDP camps, where they were left unprotected and
underfed as victims to LRA and UPDF atrocities. The international response to the savage civil war in
the north was minimal until the International Criminal Court intervened in Uganda and issued arrest
warrants against the LRA’s commanders. Although the military pressure on the LRA greatly increased,
Joseph Kony has been able to escape the authorities and continue his campaign of terror.
121
§3.2 Joseph Kony, “messianic madman”, “freedom fighter”, “devil”
Joseph Kony was a central figure in the conflict in Northern Uganda. His spiritual authority and
leadership of the LRA were quintessential for its campaign of mass violence. Often, he is seen as a
completely irrational devil, unwilling to come to peace with the government in Kampala, and a betrayer
of his own Acholi people. However, some scholars, like Sverker Finnström, remain convinced that the
craziness of his movement is overemphasized and he should rather be seen as an effective insurgency
leader fighting against Museveni’s authoritarian rule. In this paragraph, the focus will be on
understanding Joseph Kony ‘the man’. Although little is known about the man behind the phenomenon,
there are some things that are known. Furthermore, much can be inferred from his actions and the way
he reacts to threats. By using the data that is available, this paragraph will try to paint a picture of Joseph
Kony’s rationality, his motivation, and his personality.
§3.2.1 A bunch of lunatics led by a psychopath? Joseph Kony’s rationality
Joseph Kony’s Lord’s Resistance Army has often been described as an erratic group of brainwashed
psychopaths, ‘rebels without a cause’, who have no clearly articulated political goals except for the
overthrow of the Museveni government and the rule of Uganda according to the biblical Ten
Commandments.150 By extension, Joseph Kony is seen as a lunatic, a ‘psychopath’, devoid of any mental
capacity and concerned about nothing but his own survival.151 However, although the crimes committed
by Kony – such as the large-scale use of child soldiers and the massacre and mutilation of thousands of
the people he supposedly fights for – do indeed seem to defy comprehension, it is important to
understand that the characterization of the LRA – and by extension Joseph Kony – as fundamentally
irrational has important implications, both in discourse and in politics. Finnström points to the fact that
Western media accounts of the conflict overemphasize its irrational aspects, using the spectacular and
bizarre elements of the conflict to construe a “hell of colonial imagination”, structuring it as just another
round of incomprehensible primordial African violence.152 As such, the emphasis on the craziness of
one man, makes it easier for the media to preclude any efforts necessary for a deeper understanding of
the war’s deeper causes.153 Moreover, it has been argued that the Ugandan government has deliberately
misconstrued the conflict as a fundamentally irrational endeavor of one unstable individual, who does
not have any serious political agenda, in order to marginalize the north and ignore any efforts that aim
Finnström, ‘Another story’, 75.
Green, The Wizard of the Nile, 19. Payam Akhavan quotes comments on an article by BBC journalist Will
Ross: “[Kony’s] refusal for years to accept olive branches and huge concessions including total amnesty (which
has been on the table at least since the Carter Centre’s efforts in 2000) indicate his mental incapacity.” See:
Akhavan, ‘First State Referral’, 419. Another observer adds that Kony “has created an aura for himself and his
organization of deliberate irrationality and obscurantism”. Quoted in: Finnström, ‘Another story’, 81.
152
Finnström, ‘Another story’, 74-75. See also: Branch, ‘The Politics of ICC Intervention’, 182.
153
Green, The Wizard of the Nile, 312. Finnström criticizes Green as one of the authors who too explicitly link
their journeys through Africa with the adventures of colonists like Henry Morton Stanley. See: Finnström,
‘Another Story’, 74. See also: Mwenda, ‘Uganda’s politics of foreign aid’, 50-51.
150
151
122
to end the violence with serious structural political, economic, or social change which would redress the
Acholi claims of discrimination.154 The LRA has been engaged in politics, however. It has published
various manifestos with political grievances and has not been above using the ballot box to achieve its
aims – it declared a ceasefire during the 1996 Ugandan elections, for example.155
Still, it is hard to find any rationality in the acts of Joseph Kony: forcing abducted children to
kill their parents, to cut off lips and amputate limbs of civilians, would not pose as particularly ‘rational’
in any sane man’s mind. It is not the intention of this study to construe the acts of Kony as a rational
campaign pursuing rational ends. That being said, to portray Kony as being unable to make any sorts of
rational decision, or to see him as a ‘messianic mad man’156 mentally incapable of doing so, would be a
mistake. There are certainly some elements of his pattern of conduct which necessitated rational
planning, some actions which are proof of his capacity to engage in a somewhat normal decision making
process. Examples of this are outlined below. At the same time, like any other human’s decision making
process, it was misdirected by computational difficulties and cognitive fallacies, significantly impacted
by his individual traits – thoroughly described in §3.2.3, which describes Kony’s personality – and
circumscribed by emotions.
A first example of Joseph Kony’s capacity to engage in human (bounded/instrumental)
rationality, is the use of what is sometimes mentioned as proof of his fundamental irrationality, namely
the LRA’s spiritual order. Although stories of his claim to be possessed by spirits might make him sound
insane, it has already been noted above that the use of this spiritual order has various rational advantages.
It regulates the internal and external behavior of the LRA fighters – serving as a guide for both their
own conduct and their relations with the outside world – and serves their need for a legitimizing
framework in which to live.157 The fact that many NRA/UPDF soldiers – not necessarily known as
particularly irrational – believe in most facets of the LRA’s spiritual order serves to put the LRA’s
spiritual order in its wider, East African context.158 Moreover, Kony takes pains to educate ‘his’ children,
recruiting teachers to learn them about the bible and about other revolutionaries.159 These organizational
efforts have furthermore affected the LRA’s military organization. The rebel group uses a strict military
hierarchy: it is organized into brigades – which in 2008 were called Stockree, Gilva, Sinia, Trinkle, and
Finnström, ‘Another story’, 75. Government officials as well as NGO’s have gone so far as to deny the
existence of LRA political manifestos, even though the wider public was certainly aware of them. Some Acholi
who were suspected of having copies have been imprisoned. Ibid., 84-86.
155
Allen, Trial Justice, 43-44, 50; Green, The Wizard of the Nile, 56.
156
This term is used by Matthew Green, as part of the subtext of his front cover. The full subtext of his book title
is: “A bloody conflict, a messianic madman, an army of child soldiers”.
157
Titeca, ‘Spiritual Order’, 62-71.
158
Ronald Iya, ‘Encountering Kony: a Madi perspective’, in: Tim Allen and Koen Vlassenroot, The Lord’s
Resistance Army: Myth and Reality (London: Zed Books, 2010) 177-184, 183. In his autobiography, Museveni
has tried hard to fashion the fight against the LRA as a battle between his ‘modern’, ‘rational’ army and the
‘primitive’, ‘irrational’ rebels, who used “mysticism instead of science”. See: Yoweri K. Museveni, Sowing the
Mustard Seed: The struggle from freedom and democracy in Uganda (London: Macmillan, 1997) 115, 116, 173.
159
Green, The Wizard of the Nile, 186.
154
123
Control Altar – and uses military ranks – such as Brigade General and Lieutenant – to indicate the
fighters’ standing.160
Second, to describe Kony’s insurgency as wholly indiscriminate would not correspond with
reality. The use of child soldiers seems a beneficial strategic choice which has caused their large-scale
use throughout Africa and other parts of the world – Museveni’s NRA, for example, also used child
soldiers in its rebel years. The central reason for this is that they are a tabula rasa which can easily be
filled with the teachings of their new leaders and they are more conducive to military discipline.161 This
(‘relative’) rationality in target selection can also be seen in Kony’s violence against civilians. As
horrifying as it usually was, it always had a rationale – massacres were often retaliatory, mutilations
were mostly against (suspected) government collaborators.162 Or, as Kony said: “If you lie about us we
will cut your lips off, if you run from us we will cut your legs off.”163 As was discussed above, UPDF
soldiers were equally engaged in retaliatory massacres and abuses of civilians. The point here is that
although the violence was exceptionally brutal, and the spiritual order seemingly spectacular, when put
in context, they are not exceptional in and of themselves.
A factor which seems to have been important in Kony’s criminal decision making process, is
the presence of computational difficulties in conjunction with cognitive biases. Kony has spent the last
25 years living in the bush, usually in remote areas without access to modern ICT- and/or
telecommunications facilities. The bits of information Kony did receive were only pieces to a puzzle of
which Kony was unable to get the full picture. This was also applicable to the information he received
about the ICC. Although he was aware of the fact that men in The Hague were now after him, he was
not fully informed about the exact processes and workings of the Court, at one point identifying
Museveni as the prime director of the ICC.164 The lack of information made the effects of cognitive
biases more severe, as the information pool from which he selected the pieces used for his decision
making process would have been smaller and less reliable. Moreover, loss aversion – the overrating of
the significance of a loss – has some explanatory power here. The cost of losing the power he had
acquired – his social standing in the group, but also the control over an organization that he had built up
over decades – would have loomed relatively large to any small benefits gained by accepting amnesty
or any other negotiated settlement which would not leave him with some significant power. Thus,
Control Altar is seen as the group’s leadership brigade. The names of the brigades come from: Green, The
Wizard of the Nile, 142. It is unclear if the LRA still uses five distinct battalions. This can be more or less,
depending on the numbers of fighters and the geographic spread of the rebel group.
161
See for example: Peter Eichstaedt First kill your family – Child soldiers of Uganda and the Lord’s Resistance
Army (Chicago: Lawrence Hill Books, 2009); Alcinda Honwana, Child Soldiers in Africa (Philadelphia:
University Press of Pennsylvania, 2011); Oloya, Child to Soldier; Pham et al., ‘Forced Conscription in Northern
Uganda’.
162
Allen, Trial Justice, 42.
163
Finnström, ‘Another story’, 90. Photo subscript.
164
Iya, ‘A Madi perspective’, 181; Mareike Schomerus, ‘‘A terrorist person is not a person like me’: an
interview with Joseph Kony’, in: Tim Allen and Koen Vlassenroot, The Lord’s Resistance Army: Myth and
Reality (London: Zed Books, 2010) 113-131, 127. See also: Green, The Wizard of the Nile, 234-235.
160
124
Kony’s refusal to give in to the ICC’s legal sanctioning threat can be explained to some extent by looking
at his limited information pool and the effect of cognitive biases.165
Kony’s unreliable affective mood was sometimes responsible for circumscribing his decision
making process. Kony could become angry very quickly, which often resulted in the use of extreme
violence against the targets of his rage, which usually were civilians. When, in 1991, some Acholi
created the so-called Arrow Groups, Kony felt betrayed, and lashed out increasingly at civilians.
Similarly, as the 1994 peace talks broke down, he called Betty Bigombe in anger, and vowed to “shock
the world”. Although the 2002-2005 Iron Fist operations significantly weakened the LRA’s military
capacities, they above all enraged Kony, prompting him to order his fighters to re-enter Northern Uganda
and retaliate against the civilian population.166 This is why Father Carlos of the Acholi Religious Leaders
Peace Initiative stated:
He may be laughing with you and very cordial, saying that he really wants peace, but the next minute he’s
very angry and shouting and making threats and saying he’s going to give orders to kill everybody.167
Kony’s emotional states thus seems to have impacted his criminal decision making process, causing him
to lash out with atrocities when he felt betrayed or was angry. These severe emotional states made
acquiescing to the demands of an International Criminal Court harder to consider.
In conclusion
The irrational elements of Kony’s insurgency, a central element in the discourse about the conflict in
Northern Uganda, have probably been overemphasized. There are certainly aspects to his activities that
betray some amount of rationality, examples of which are the military and spiritual organization of his
rebel group and the selection of targets. Yet, 25 years in the bush have certainly limited Kony’s
information pool, exacerbating the effects of cognitive biases.168
This does not necessarily suggest that a ‘fully rational person’ would have given in to the ICC’s demands.
For all of these examples, see above, §3.1.
167
Green, The Wizard of the Nile, 19.
168
But even when a rational cost-benefit analysis would be applied to Kony’s persistence of violence after
having been indicted by the ICC, the continuation of violence should not be surprising. The refusal to withdraw
the arrest warrants meant that Kony’s only viable nonviolent exit strategy had been closed off. Thus, there was
no way back from the path of violence. See, for example, Adam Branch, ‘International justice, local injustice:
the International Criminal Court in northern Uganda’, Dissent 51:3 (2004) 22-29, 23.
165
166
125
§3.2.2 Mony me ngom and mony me polo: Kony’s motivation
What motivated Joseph Kony during his murderous campaign in East Africa? What did he try to achieve
and with what purpose? As was noted in the previous section, it is often said that the LRA does not have
any political agenda, apart from replacing Museveni’s government by one based on the Ten
Commandments. Also, it was noted that the denial of the existence of an LRA political agenda has its
own political uses, which leads to a misconstruction of reality. In this section Kony’s motivation is
studied more closely. It is assumed here, that Kony’s insurgency campaign has both rational, ‘earthly’
aspects, and – at least in Western eyes – irrational, or ‘spiritual’ aspects. This simultaneous existence of
both secular and religious aspects in Kony’s campaign, is reflected in the Acholi perspective, which
looks at the LRA as both an ‘earthly army’ (mony me ngom) and a ‘heavenly army’ (mony me polo).
This section therefore studies Kony’s motivation by using parts of Finnström’s framework, which sees
“the ‘earthly’ and ‘heavenly’ aspects of the insurgency campaign as parallel intertwined aspects of the
same fragmented war reality”, which differ in salience depending on the time period and the situation.169
Kony’s spirituality played a key role in his motivation. One of the most often cited examples of
Kony’s spiritual motivation is his stated desire to rule Uganda according to the Ten Commandments.
Moreover, it has been reported that he teaches abducted children from the Bible and has justified his
killing campaigns by citing biblical messages from which it would follow that “God is a killer”.170 This
has led some to typify Kony as a Christian fundamentalist. However, Kony’s spiritual world merges
traditional Acholi – and wider East-African – beliefs with Christian and Islamic motifs. His claims to
be communicating with the spirit world – in his capacity as an ajwaki – are consistent with longer-held
Acholi spirituality, while he has expressed his Islamic inspiration by fasting on Fridays or threatening
pig farmers with death.171 As such, to see Kony as being mainly motivated by a fundamentalist version
of Christianity would definitely be incorrect – he even explicitly denied being one in one of the rare
interviews with him: “[W]e are [not] fundamental as Museveni said”.172 It has already been described
above how the spiritual order of the LRA serves to regulate the internal and external behavior of its
members. It would therefore be more concise to describe Kony’s spiritual world as an eclectic mix of
regional belief systems which have fused into an ideology legitimizing the opposition against the
government in Kampala, casting it as a fight against the ‘impure’.173 When Kony suspected the civilian
population of collaborating with this impure government, they became part of this ‘impure’ out-group
as well, which made atrocities against civilians a regular and – in Kony’s eyes – perfectly justifiable act.
Although Kony has cast his insurgency as a spiritual struggle to rid the world of impurity, he
also often emphasized his secular demands. It is hard to imagine that Kony’s representatives would be
able to seriously negotiate with the Ugandan government at the Juba peace talks for two years and come
Finnström, ‘Another story’, 77.
Green, The Wizard of the Nile, 133.
171
According to mainstream Islamic belief, pigs are haram (impure).
172
Schomerus, ‘Interview with Joseph Kony’, 123.
173
Titeca, ‘The spiritual order’, 66.
169
170
126
very close to a negotiated end to the insurgency, if they were only informed by spiritual motivations
such as the introduction of the Ten Commandments as a guiding document of the Ugandan
government.174 Kony’s demands focus on an end to the perceived discrimination of Northern Uganda
by the south – a feeling prevalent amongst many northerners – and Museveni’s authoritarian leadership
style.175 In some of the LRA pamphlets, it has been stated that the development of Uganda has excluded
Northern Uganda both economically and politically and that the Kampala government has
systematically violated the human rights of its inhabitants. Museveni’s authoritarianism – expressed in
such events as the intimidation of opposition politicians and the arrest and trial of Museveni’s opponent
Kizza Besigye on allegations of conspiring with the LRA176 - has led the LRA to call for new multiparty
elections (the fact that the LRA itself has long ignored such notions as democracy and respect for human
rights is conveniently forgotten).177
The observation that Kony in fact has articulated a political agenda leads to the question of why
he and the other rebel commanders have not accepted the amnesty offer resulting from the 2000 Amnesty
Law, nor concluded peace in the various peace talks with the Ugandan government between 1988 and
2008. It is indeed striking that Kony has not accepted the amnesty, not even in the LRA’s weakest
moments. Rather, he threatened his fighters with severe punishment if they would accept the amnesty.
So why is Kony so hostile to the 2000 Amnesty Law? Answering this question can give us some insight
into Kony’s central motivations and to some extent into his values. Various answers have been
suggested. Some have argued that Kony’s hostility shows his lack of willingness to achieve peace,
sometimes even calling him mentally incapable because of the fact that he refused to accept so many
peace offerings.178 One could also point to the lowering of Kony’s social status which would occur if
Kony accepted the amnesty. Having spent decades in the bush amongst an army of fighters who worship
him like a god, it is highly unlikely that he would see a normal life as just another Acholi as a positive
alternative. A third reason for the refusal to accept amnesty might be his distrust of the government. In
the not so distant history, the high-ranking rebel Mike Kilama, who – along with other rebel commanders
– accepted a government amnesty offer, had subsequently died in unclear circumstances. For Kony, this
remained a sensitive issue and he might have been afraid that he might end up in the same way. 179 It
seems that during the Juba peace talks, the government’s ambiguity about the status of the ICC arrest
warrants fed into this distrust. With the ICC often making clear that they would not respect an amnesty
174
However, Joanna R. Quinn, questions the representativeness of those who were negotiating on behalf of the
LRA. This group of people, calling themselves the Lord’s Resistance Movement (LRM), consisted mostly of
members of the Acholi diaspora instead of fighters from the bush. She doubts the group’s claim to have been
negotiating on behalf of the LRA and to have been in frequent contact with the rebel group. See: Quinn,
‘Negotiating with the LRA’, 60.
175
Allen, Trial Justice, 43; Finnström, ‘Another story’, 82; Green, The Wizard of the Nile, 130-138, 300;
Ssenyonjo, ‘Persecution or Amnesty?’, 362.
176
Mwenda, ‘Uganda’s politics of foreign aid’, 53-54.
177
Finnström, ‘Another story’, 81-82
178
Akhavan, ‘First State Referral’, 419.
179
Finnström, ‘Another story’, 79.
127
for ‘those most responsible’, Kony might have felt that accepting the peace process would have been
tantamount to a surrender to the ICC. The final reason for Kony’s hostility towards the amnesty is linked
to the distrust of the government and has to do with his denial of having done anything wrong. As was
noted earlier, accepting the amnesty was linked to the process of mato oput, of which confession of guilt
is a vital element. Therefore, accepting an amnesty would be synonymous with accepting guilt and being
absolved of your crimes by the government. The problem here, then, was that Kony did not feel like he
had done anything wrong. In his eyes, he and his LRA had only fought for the improvement of the fate
of the Acholi. Thus, Kony felt that accepting an amnesty without any (talks on a) serious political process
of transformation, would be commensurate with a capitulation.180
Having answered the question of why Kony did not accept amnesty from various viewpoints,
what would be the best way to describe Kony’s values? It follows that one of Kony’s most important
values is ensuring his own survival. The risk of betrayal by the government or being handed over to the
ICC were important motivations for him to continue his insurgency. This can also explain his campaign
of child abduction, since the regular input of fresh recruits was essential for the LRA’s continued
operational capabilities. His own survival in this sense prevails over one of his other values, putting an
end to the discrimination of the Ugandan north by the Ugandan south, which is one of the most important
points of his political agenda. Although Kony does seem to care about the fate of the Acholi, ridding the
world of everything impure is even more important. He justified his crimes by pointing to the perceived
need to (violently) purify Acholi society. For Kony, the more important categorization was ‘pure’ and
‘impure’, instead of other, more ethnically oriented categorizations such as Lwo-speakers and Bantuspeakers. As such, the spiritual motivation seems to prevail over his political motivations. In this sense,
a hierarchy of values emerges, in which his own survival comes first, the spiritual agenda comes second,
and the political motivations come last. Another important value for Kony seems to be the acquirement
of or the holding on to power. As might be expected, this study finds no evidence of any moral norms
which preclude the use of violence (against civilians). The large-scale use of violence against innocent
civilians is ‘morally acceptable’ to Kony and his LRA fighters. Moreover, Kony’s intrinsic motivators
– his own survival, holding onto power, and the fate of the Acholi – are all at odds with giving into the
extrinsic motivation of ICC demands. Since intrinsic motivation is more powerful than extrinsic
motivation, this can also, to some extent, explain Kony’s apparent insusceptibility to the ICC’s legal
sanction threats.
In conclusion
This section has tried to answer the question of what motivates Kony in his violent campaign throughout
East Africa. It was suggested that Kony’s motivation comes both from spiritual and more earthly
notions. While the LRA does indeed pursue a political agenda, Kony’s spiritual worldview, legitimizing
180
Ibid., 83-84.
128
the violence against civilians, seems to prevail. When Kony’s values would have to be described, one
might note his need for survival and holding onto power, as well as his political struggle against
Museveni’s government. In recent years, however, Kony’s main motivation seems to be the survival of
himself and the LRA. Any other option has been closed off. Government forces from Uganda, South
Sudan and the DRC, along with American Special Forces and U.N. and A.U. troops have chased him
around Central Africa for multiple years now. The political manifestos the LRA once regularly
published, are now increasingly rare. Marginalized and chased around, there is little chance that the
group will ever be in the position again to issue demands at a negotiation table in Juba – or anywhere
else, for that matter. This course of events clearly shows how some values can become more salient
when the situation calls for it.181 The always present perceived importance of his own survival has now
apparently established itself as the thing he values most.
181
See, for example: E. Tory Higgins, Beyond Pleasure and Pain: How Motivation Works (Oxford: Oxford
University Press, 2011).
129
§3.2.3 “Somehow you believe”: Joseph Kony’s personality
It is difficult to describe the personality of someone who is notorious for his opacity. Therefore, instead
of pretending to give a definitive analysis of Kony’s personality, this section will describe some of his
more remarkable traits, tendencies in his personality make-up which seem to be lasting and consistent.
While doing so, it is necessary to distinguish between two very different images of Kony, namely the
one he holds of himself and the one that many others hold of him.182 Kony likes to fashion himself as a
freedom fighter, someone who fights for the protection of the Acholi people against the tyrannical
government of Museveni.183 At the same time, his opponents see him as a dangerously psychotic
criminal. People who have interacted with him on a daily basis are unsure of what they should think of
him. This leads to one of his apparently consistent personality traits: his unpredictability. The quote
from Father Carlos which was alluded to earlier is worth mentioning here. A tribal chief from Congo
involved in the Juba peace process adds to this that “he was unpredictable, and could do anything”.184
Although Kony is mostly known for his violent outbursts and murderous sprees in Eastern Africa, one
of his over sixty wives, who had escaped from the rebel group, had nothing bad to say about him, further
illustrating the multiple faces of Kony’s personality.185 He was often described as a charismatic leader,
with one former rebel noting that “Kony has a kind of invisible magic[,] [s]omehow you believe”.186
Another apparently lasting personality trait is his sensibility for betrayal, which usually resulted
in the ordering of extremely brutal outbursts of LRA violence. For Kony, betrayal is widely defined.
The failed peace talks of 1994 and 2006-2008, and the forming of Acholi self-defense groups as part of
the 1991 Operation North, each resulted in large-scale campaigns of massacres, mutilations and
abductions. When Vincent Otti, a long-time rebel commander and Kony’s second-in-command,
questioned his negotiation policy at Juba, Kony had him executed for betrayal. Moreover, abductees
who were captured while they tried to escape the LRA, were usually tortured or murdered for betraying
Kony. In Kony’s own world, his cause is the only right one. The sensitivity for betrayal might have
something to do with the decades of living in the bush in a reality that he controlled. In this reality, he
is the spiritual leader with magical powers, the sole guarantor of Acholi well-being. In his own words,
he is “a human being”, who has not committed any crimes. In this reality, he is not the perpetrator, but
the victim.187 When he is ripped out of his own version of reality, he responds by viciously striking out
at those whom he considers impure.
182
It must be noted that the reality on the ground has shown that these two images are not mutually exclusive.
There are supporters of both extreme views, but there are also those who hold a more mixed image of Kony. See
also: Green, The Wizard of the Nile, 316.
183
Schomerus, ‘Interview with Kony’, 129-131.
184
Iya, ‘A Madi perspective’, 181.
185
Green, The Wizard of the Nile, 288-289.
186
Ibid., 134.
187
In one of his rare interviews, with Mareike Schomerus, Kony claims that “we don’t kill people”, and that any
claims of atrocities committed by the LRA is propaganda by Museveni. He concludes that “I am not a killer. I
don’t kill people. I am a human being. I am a person, also.” See: Schomerus, ‘Interview with Joseph Kony’, 116117.
130
Rating Joseph Kony on the Big Five of personality traits is even harder to do than for Slobodan
Milosevic. A possible rating could be: low on Extraversion, low on Agreeableness, low on
Conscientiousness, low on Emotional Stability and low on Openness to Experience.188 As was expected
in the analytical framework, the Dark Triad of personality types (narcissism, Machiavellianism, and
(subclinical) psychopathy) also looks like a useful framework to typify Kony’s personality. Kony
certainly displays behavioral tendencies that match the definition of subclinical psychopathy as it was
laid out in the analytical framework.189 With thousands of victims, he has not once expressed remorse
or shown any sign of empathy for his victims. The brainwashing of thousands of abductees, forcing
them to commit atrocities and inducing extreme forms of Stockholm syndrome,190 would definitely
count as interpersonal exploitation and manipulation. Machiavellianism, however, is not necessarily a
strong element of Kony’s personality.191 There is little evidence for elaborate deceptive schemes or the
deliberate betrayal of others. At the same time, Kony does come across as a narcissistic person.192 The
status he acquired – as the leader of a group of rebels who idolize him –, his supposed magical powers
and ability to communicate with the spirit world, have apparently led to an inflated sense of selfimportance and ideas of grandiosity. The fact that Kony seems to mostly live in his own world, and is
highly sensitive to what he sees as betrayal, moreover points at am extreme sensitivity to criticism,
another element of narcissism. As such, although Kony does not seem particularly characterized by
Machiavellianism, he definitely does display traits of (subclinical) psychopathy and narcissism.
In conclusion
A few traits that seem to be lasting and consistent elements of Kony’s personality are his
unpredictability, his charisma, his sensibility to betrayal, and his inability to cope with events that rip
him out of his own reality. Still, it is almost impossible to give a definitive description of the personality
of a man who is as mysterious as Kony.
188
As was the case with the previous case study, it has to be emphasized that this rating is highly speculative,
since it is not based on a clinical observation or any sort of scientifically passable personality evaluation.
189
There, it was defined as a combination of “high impulsivity, callousness, interpersonal manipulation,
exploitation, and stimulation-seeking, and by low empathy, anxiety, and remorse”.
190
Oloya, Child to Soldier, 69-74.
191
Machiavellianism is defined by interpersonal exploitation, manipulation, along with the deception and
disregard of others.
192
Narcissism is defined as “an excessive sense of self-importance, ideas of grandiosity and an extreme
sensitivity to criticism”.
131
§3.3 Joseph Kony and the International Criminal Court
When the ICC intervened in Northern Uganda, a new dimension was added to the conflict. While it was
hoped it could bring peace, the reception by ordinary Ugandans has been mixed. Kony did not seem to
be bothered by the newly created permanent international court. The reasons behind this will be further
explored in the sections below. To set the context, this paragraph will start out with a short description
of the ICC’s mandate, structure, and its powers and shortcomings. Thereafter, the way in which Kony
is held legally responsibility for crimes committed under the jurisdiction of the Court will be described.
After this context has been given, the paragraph will move on to analyze the factors that influenced the
ICC’s deterrent capability and the way in which this capability impacted Joseph Kony’s decision making
process.
§3.3.1 The International Criminal Court
After the epoch-making international military tribunals of Nuremberg and Tokyo, the hope was
expressed by many that a permanent international criminal court could be created by the international
community. However, the political deadlock created by the Cold War long prevented the fulfillment of
this dream. When the atrocities taking place in the former Yugoslavia and Rwanda gave rise to ad-hoc
international criminal tribunals, this paved the way for a new wave of legal optimism. In July 1998, after
lengthy negotiations, over a hundred states signed the Rome Statute, which would establish a permanent
International Criminal Court.193 On 1 July 2002, after it was ratified by 60 state parties, the Rome Statute
entered into force, thus creating the first treaty-based International Criminal Court (ICC) with a
permanent jurisdiction.194 As of November 2013 the Rome Statute has been ratified by 122 countries.195
The Court’s mission is to punish those most responsible for “the most serious crimes of concern to the
international community as a whole”. The Court has to “end impunity for the perpetrators of [the most
serious] crimes and thus […] contribute to the prevention of such crimes”.196 As such, it “appeared to
make the old universalist dream of lasting, if not perpetual, peace a reality”.197
193
For the story of the developments leading to the creation of the International Criminal Court, see: Dawn
Rothe and Christopher W. Mullins, The International Criminal Court: Symbolic Gestures and the Generation of
Global Social Control (Lexington: Lexington Books, 2006) 29-51.
194
Moreno-Ocampo, ‘The Role of the International Community’, 280; Volker Nerlich, ‘The International
Criminal Court 2002-2010 – A view from the inside’, Criminal Law Forum 22:1-2 (2011) 199-214, 199.
195
International Criminal Court, ‘How Many Countries Have Ratified the Rome Statute?’, available online at:
www.icc-cpi.int/en_menus/icc/about%20the%20court/frequently%20asked%20questions/Pages/4.aspx (2
December 2013).
196
International Criminal Court, Rome Statute of the International Criminal Court, (17 July 1998), available
online at: www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE79CDC7CF02886/283503/RomeStatutEng1.pdf (2 December 2013). The other Articles referred to in this piece
can be found in the same document.
197
Mireille Delmas-Marty, ‘Ambiguities and Lacunae: The International Criminal Court Ten Years on’, Journal
of International Criminal Justice 9:3 (2013) 553-561, 553.
132
The ICC is structured in a similar way as the ICTY. It has four different organs: the Presidency,
the Office of the Prosecutor, the Registry, and separate judicial chambers.198 The Presidency is
responsible for the administrative functions of the Court, and consists of three judges elected by their
fellow judges for terms of three years. The current Presidency consists of the Justices Sang-Hyun Song,
Sanji Mmasenono Monageng, and Cuno Tarfusser.199 The Office of the Prosecutor is an organ largely
independent of the rest of the Court and is occupied with the investigation and prosecution of the cases
referred to the jurisdiction of the ICC. After ten years of work, Chief Prosecutor Luis Moreno-Ocampo
has recently handed over his function to Fatou Bensouda, who has filled the function since 15 June 2012
and will maintain it for a term of nine years.200 The Registry is responsible for the administrative and
non-judicial functions of the ICC. As such, it conducts the Court’s Outreach work and houses elements
occupied with activities aimed at the redress of victims, such as the ICC Victims Trust Fund.201 Although
the non-judicial activities of the Court have struggled with funding problems,202 the important place that
victims hold in the ICC’s Rome Statute is one of the novel contributions the Court brings to international
criminal law.203 The separate judicial chambers include Pre-Trial, Trial, and Appeals Divisions. The
Pre-Trial Chamber hears issues that are relevant to pre-judicial case processing, while the Trial and
Appeals Divisions conduct the trials themselves. At the same time, the ICC is distinctly different from
the ICTY in political terms. The ICC is an independent judicial body, unrelated to any other international
organization. Its mandate comes from the Rome Statute, a treaty ratified by states themselves, unlike
the ICTY, which was functioning with a mandate from the U.N. Security Council. An Assembly of
States Parties conducts oversight and management, and is furthermore responsible for the Court’s
financing.
The description of the structure of the ICC largely follows: Christopher W. Mullins, ‘The International
Criminal Court’, in: M. Cherif Bassiouni, The Pursuit of International Criminal Justice: A World Study on
Conflicts, Victimization, and Post-Conflict Justice. Volume 1 (Antwerp: Intersentia, 2010) 399-421, 400-402.
199
International Criminal Court, ‘The Presidency’, available online at: http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/presidency/Pages/the%20presidency.aspx (2 December
2013).
200
International Criminal Court, ‘Office of the Prosecutor’, available online at: http://www.icccpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/Pages/office%20of%2
0the%20prosecutor.aspx (2 December 2013).
201
See, inter alia: Janine Natalya Clark, ‘International War Crimes Tribunals and the Challenge of Outreach’,
International Criminal Law Review 9:1 (2009) 99-116,112-115; Mariana Goetz, ‘The International Criminal
Court and its Relevance to Affected Communities’, in: Nicholas Waddell and Phil Clark, Courting Conflict?
Justice, Peace and the ICC in Africa (London: Royal African Society, 2008) 65-72, 65-71; Roach, ‘Multilayered
Justice’, 260-264.
202
Goetz, ‘Relevance to Affected Communities’, 67; Jonathan O’Donohue, ‘Financing the International
Criminal Court’, International Criminal Law Review 13:1 (2013) 269-296, 283; David Taylor, ‘Beyond the
Courtroom: The objectives and experience of international trials at the grassroots’, Paper Presented at “Facing
the Past: International Conference on the Effectiveness of Remedies for Grave Historical Injustices,” sponsored
by the University of Utrecht, Hotel Karel V, Utrecht, the Netherlands, (27-28 May 2010) 15.
203
Marc Henzelin, Veijo Heiskanen, and Guénaël Mettraux, ‘Reparations to Victims before the International
Criminal Court: Lessons from International Mass Claims Processes’, Criminal Law Forum 17:3 (2006) 317-344,
317-318. The relevant articles for victim participation and reparation in the Rome Statute are Articles 68, 75, and
79.
198
133
As set out in Article 5 of the Rome Statute, the Court has jurisdiction over a core set of
international crimes, namely genocide, crimes against humanity, and war crimes. Also, it will be
mandated to prosecute crimes of aggression, although at the time a definition of this crime has not yet
been agreed upon.204 The jurisdiction of the Court, however, is limited in three important ways. First,
according to Article 11 of the Rome Statute, it has jurisdiction only over crimes committed after the
Statute entered into force, thus limiting its temporal jurisdiction to crimes committed after 1 July 2002.
As will be discussed further below, this limitation has led to some problems in the Ugandan case.
Second, the ICC’s jurisdiction is restricted in its geographical scope. Since the ICC is a treaty-based
judicial mechanism, it only has jurisdiction over crimes committed in the territory of a state party. As
such, it has nothing to say over countries that have not ratified the Rome Statute.205 This leaves some of
the most powerful states in the world – amongst others the United States, China, India, and Russia –
immune to any international legal repercussions for its actions.206 Third, the Court is restricted by the
principle of complementarity. The Rome Statute does not lift the responsibility of national judiciaries to
investigate and prosecute those most responsible for serious crimes.207 Nor does the ICC have the power
to override national investigations like the ICTY could.208 As Article 17(1)(a) states, a case is
inadmissible when it “is being investigated or prosecuted by a State which has jurisdiction over it”. Only
when a domestic judiciary is genuinely unwilling or unable to carry out investigations or prosecutions,
can the ICC’s jurisdiction be activated. As such, the Court is meant as a ‘court of last resort’.209 The
exact workings of this system of complementarity, as regulated by Article 17, is hotly debated, especially
with regards to the practice of self-referrals. This debate will be further explored when discussing the
ICC’s legitimacy, in §3.3.5.
There are various ‘triggering mechanisms’ that can activate the Court’s jurisdiction. The first
and so far most often used is a self-referral by a state party. Under Article 14 (1), a “State Party may
refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear
to have been committed”. A self-referral leads to an investigation by the Office of the Prosecutor, in
which it decides whether or not it is feasible to prosecute those responsible, based on the
complementarity principle and the gravity of the crimes. Once the Prosecutor has decided that the case
is indeed feasible, it has to bring it before a Pre-Trial Chamber, which makes the final decision regarding
the admissibility of the case. If the Pre-Trial Chamber gives the go-ahead, the Prosecutor can continue
its investigations and start issuing arrest warrants. It is important here to note that a self-referral brings
204
The state parties decided during a meeting in Kampala in 2010 to have a workable definition enter into force
in 2017. See: Delmas-Marty, ‘Ambiguities and Lacunae’, 555-558.
205
This is lined out in Article 12. However, under Article 13 (b), the U.N. Security Council can refer situations
to the Court’s jurisdiction under Chapter VII of the Charter of the United Nations. This is what happened in the
cases of Sudan and Libya.
206
Darren Hawkins, ‘Power and Interest at the International Criminal Court’, SAIS Review 28:2 (2008) 107-119,
113-114.
207
Kastner, The ICC between Law and Politics, 57.
208
Clark, ‘Peace, Justice and the International Criminal Court’, 537.
209
Article 17 of the Rome Statute. See also: Akhavan, ‘The Rise, and Fall, and Rise’, 531.
134
a situation under the jurisdiction of the Court (as opposed to a single person or entity). By accepting
self-referrals, the Court has opened investigations in Uganda, the DRC, the Central African Republic,
Côte d’Ivoire, and Mali. The second way in which a case can be referred to the ICC is by way of the
U.N. Security Council. Article 13 (b) authorizes the Security Council to issue a Chapter VII Resolution
in which it refers a situation, usually in the territory of a non-state party, to the jurisdiction of the Court.
Article 13 (b) has been utilized in March 2005 for the situation in Darfur, Sudan, and in February 2011
for the situation in Libya. The third, and final way the ICC can obtain jurisdiction over international
crimes, is by using the proprio motu powers of the Prosecutor. Article 15 (1) gives the Office of the
Prosecutor the power to open investigations on its own behalf, although in this context the approval of
a Pre-Trial chamber is explicitly required. If the Pre-Trial chamber can be convinced that the state in
question is either unwilling or unable to conduct domestic prosecutions, and the crimes are grave
enough, the Prosecutor can obtain the permission to open its own investigations. 210 The Prosecutor’s
proprio motu powers were used for the first time in its investigation into the situation in Kenya. 211 At
the moment, the Office of the Prosecutor is also conducting preliminary investigations into alleged
crimes committed in Honduras, Afghanistan, Korea, and Comoros, as well as Georgia, Guinea,
Colombia, and Nigeria.212 All of these cases have made the years 2012-2013 the busiest years yet for
the Court.213
In the selection of persons to be indicted for crimes under the ICC’s jurisdiction, the Office of
the Prosecutor has so far chosen for a mixed prosecutorial strategy, in which it has targeted both highranking government officials – including some (former) heads of state – and rebel commanders, leading
to a total of 25 arrest warrants.214 In the first ten years of investigating situations and prosecuting
individuals, the ICC has been running into some problems, many of which are endemic to its design,
while others are the result of unhappy choices made by the ICC itself. The first major problem the ICC
is facing today, is securing the apprehension of its suspects. Because the ICC does not have its own
police force, it lacks the enforcement capabilities necessary to fulfill its mandate.215 At the moment, 15
out of 25 suspects, including Joseph Kony, remain at large.216 Unlike the ICTY, the ICC is not mandated
210
An analysis of the proprio motu powers of the Prosecutor, and why they have not yet been used very often,
can be found in: Kastner, The ICC between Law and Politics, 117-153.
211
Dov Jacobs, ‘The ICC authorizes first use of OTP proprio motu powers in Kenya: Opening a new Pandora’s
Box of legal difficulties (and revisiting some old ones too…)’, The Netherlands School of Human Rights
Research, (7 April 2010), available online at: http://invisiblecollege.weblog.leidenuniv.nl/2010/04/07/the-iccauthorizes-first-use-of-otp-prop/ (2 December 2013).
212
International Criminal Court, ‘Office of the Prosecutor’.
213
International Criminal Court, ‘ICC report to UN details busiest year yet, urges Security Council support’, (8
October 2013), available online at: http://www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr951.aspx (2 December 2013).
214
James Meernik, ‘Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects’,
International Criminal Law Review 13:1 (2013) 169-190, 190. For an overview, see: International Criminal
Court, ‘All Cases’, available online at: www.icccpi.int/en_menus/icc/situations%20and%20cases/cases/Pages/cases%20index.aspx (2 December 2013).
215
Meernik, ‘Apprehension of ICC Suspects’, 169.
216
International Criminal Court, ‘All Cases’.
135
by the Security Council, and thus lacks a “supranational enforcement capacity to command state
compliance”.217 The ICC is wholly dependent on the cooperation of states for assistance in the judicial
process, including the arrest of suspects, the collection of evidence, the questioning of witnesses and
non-judicial activities like outreach and victims’ assistance.218 To ensure this assistance, the ICC has
often entered into cooperative relationships with governments of the states in which it is conducting
investigations. This is also why the first Chief Prosecutor actively promoted self-referrals.219 Although
such a cooperative relationship definitely seems preferable to an adversarial relationship – an example
of which is the ICC’s relationship with the government of Sudan, which has actively challenged the
Court and prevented any ICC staff from entering its territory220 -, it has its own downsides, which are
mostly related to the risk of instrumentalization and perceived partiality. Some actions taken by the
former Chief Prosecutor have further fuelled these allegations.221 Many of these problems can be seen
in Uganda, as will be discussed in §3.3.5.
The problems outlined above are mostly endemic to the ICC’s design, or as Volkert Nerlich
calls it, an “in-built weakness”.222 In many ways, the Rome Statute is a compromise between two
different ideals. On the one hand, it is a symptom of the drive for a transformation of world politics, a
call for the ending of the ‘culture of impunity’, which had prevailed for so long after the transformative
Nuremberg and Tokyo trials that followed the Second World War.223 On the other hand, the Rome
Statute forces the Court to function in a political environment that is still very much dominated by the
Realpolitik characteristic of the Westphalian state system.224 As such, the ICC and the Rome Statute are
the children of a clash between what Delmas-Marty calls the ‘universalist model’ and the ‘sovereign
model’.225 Any aspirations to a utopia of worldwide justice for everyone, will always be checked by the
self-interested actors in the international state system. Or, as M. Cherif Bassiouni has argued: “The
principal obstacles to the effectiveness of the ICC will always be Realpolitik and states’ interests.”226
Thus, the environment of global politics forces the ICC, despite its apparent reluctance to deviate from
its legal underpinnings, to engage in political processes and make decisions that have a political impact.
Kenneth A. Rodman, ‘Pacting the Law within Politics. Lessons from the International Criminal Court’s First
Investigations’, Paper Presented at “Facing the Past: International Conference on the Effectiveness of Remedies
for Grave Historical Injustices,” sponsored by the University of Utrecht, Hotel Karel V, Utrecht, the Netherlands,
(27-28 May 2010) 2 See also: Clark, ‘Peace, Justice and the International Criminal Court’, 527.
218
Ibid., 529.
219
Claus Kress, ‘‘Self-Referrals’ and ‘Waivers of Complementarity’: Some Considerations in Law and Policy’,
Journal of International Criminal Justice 2:4 (2004) 944-948, 944-945.
220
Angelo Izama, ‘Accomplice to Impunity? Rethinking the Political Strategy of the International Criminal Court
in Central Africa’, SAIS Review 29:2 (2009) 51-60, 51-52; Lydia A. Nkansah, ‘International Criminal Justice in
Africa: Some Emerging Dynamics’, Journal of Politics and Law 4:2 (2011) 74-84, 77-78.
221
Clark, ‘Peace, Justice and the International Criminal Court’, 524.
222
Nerlich, ‘A View from the Inside’, 214.
223
Michael Struett, ‘The Meaning of the International Criminal Court’, Peace Review 16:3 (2004) 317-321, 319.
224
Rodman, ‘Pacting the Law’, 2.
225
Delmas-Marty, ‘Ambiguities and Lacunae’, 554.
226
M.Cherif Bassiouni, ‘The ICC – Quo vadis?’, Journal of International Criminal Justice 4:3 (2006) 421-427,
426.
217
136
In conclusion
The ICC was established as a result of the legal optimism that flourished after the creation of the ICTY
and the ICTR. The founding Rome Statute has been ratified by over a hundred countries and the Court
– structured into a Presidency, Office of the Prosecutor, judicial chambers, and Registry – has
experienced all three triggering mechanisms: it has accepted self-referrals, referrals by the Security
Council, and used the Prosecutor’s proprio motu powers. While investigating cases and prosecuting
alleged war criminals, the Court has run into problems – inter alia the apprehension of suspects, state
dependency, and perceived partiality – that are mostly endemic to its design. Despite these persisting
problems, the ICC has made some important progress in recent years. It has both convicted and acquitted
its first suspect, produced a large number of arrest warrants, and has had some successes in securing the
arrest of other indictees. Moreover, the two Security Council referrals appear to signal increasing support
for the ICC amongst the Council’s five permanent members.
137
§3.3.2 Kony’s legal responsibility for crimes committed in Northern Uganda
On 16 December 2003, Uganda used Articles 13(a) and 14 of the Rome Statute to refer the ‘situation
regarding the Lord’s Resistance Army’ to the Prosecutor of the International Criminal Court, thus
granting to the Court jurisdiction over crimes committed (in principle) by both parties in the conflict.227
After making the acceptance of the referral known on a press conference in London on 29 January 2004,
the Prosecutor notified states parties on 21 June that sufficient evidence existed to proceed with an
investigation.228 This investigation resulted in the issuing of arrest warrants against five LRA
commanders, namely Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska
Lukwiya, which were made public on 13 October 2005.229 After reports came in that Raska Lukwiya
had been killed in fights with government forces on 12 August 2006, the Pre-Trial Chamber terminated
the outstanding arrest warrant on 11 July 2007.230 Although many observers have reported the death of
Vincent Otti in November 2007, as of November 2013 the warrant against him remains outstanding.231
In this section, the focus will be on the warrant against Joseph Kony and the way in which his legal
responsibility is construed. In the arrest warrant, Joseph Kony is accused of individual criminal
responsibility232 for twelve counts of crimes against humanity – including murder, enslavement, sexual
enslavement, rape, and inhumane acts of inflicting serious bodily injury and suffering. 233 Also he is held
responsible for twenty-one counts of war crimes – including murder, cruel treatment of civilians,
intentionally directing an attack against a civilian population, pillaging, inducing rape, and forced
enlistment of children.234 Together with the other LRA commanders indicted by the ICC, Joseph Kony
is accused of “more than 2.200 killings and 3.200 abductions in over 820 attacks”.235
Kony’s individual criminal responsibility is more direct and more easily constructed than in the
case against Slobodan Milosevic. Its apparent simplicity made the case against the LRA seem like a
promising first for the ICC.236 Although Kony has often denied committing any crimes, 237 it seemed
clear to everyone that crimes had indeed been committed by the LRA, and that Joseph Kony was
Akhavan, ‘First State Referral’, 403; Ssenyonjo, ‘Prosecution or Amnesty?’, 365.
Allen, Trial Justice, 82, 85.
229
Ibid., 182-185; Clark, ‘Re-Framing the Debate’, 141.
230
Ssenyonjo, ‘Prosecution or Amnesty?’, 366.
231
See: International Criminal Court, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and
Dominic Ongwen, Case No. ICC-02/04-01/05, available online at: http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/related%20cases/icc%200
204%200105/Pages/uganda.aspx (2 December 2013).
232
Individual criminal responsibility is defined in Article 25 of the Rome Statute and is used in a similar way as
in the indictment against Slobodan Milosevic. For more on this, see §2.3.2.
233
These are punishable under Article 7(1)(a), Article 7(1)(c), Article 7(1)(g), and Article 7(1)(k) of the Rome
Statute.
234
These are punishable under Article 8(2)(c)(i), Article 8(2)(e)(i), Article 8(2)(e)(v), Article 8(2)(e)(vi), and
Article 8(2)(e)(vii) of the Rome Statute.
235
Quinn, ‘Negotiating with the LRA’, 65.
236
Akhavan, ‘First State Referral’, 403-405.
237
He has either denied that killing civilians is a crime – according to him, killing impure people is not a crime –,
or has denied committing any crimes at all – claiming that any accusations are propaganda by Museveni. See:
Schomerus, ‘Interview with Joseph Kony’, 116-117.
227
228
138
individually responsible for them.238 As the leader of a rebel group implicated in the most horrendous
of crimes – massacres, mutilations, and the enlistment of children to commit atrocities – it is hardly
possible to disagree with the prosecution of Joseph Kony. Moreover, the crimes perpetrated by the LRA
seem to be part of a widespread, systematic campaign, further justifying holding Joseph Kony
individually responsible as the group’s leader.239
Although Joseph Kony has been implicated in crimes committed as far back as 1988, the ICC
in principle has jurisdiction only over crimes committed after 1 September 2002, the date the Rome
Statute entered into force for Uganda. However, because Uganda submitted a declaration under Articles
11(2) and 12(3) of the Rome Statute, the Court’s jurisdiction is extended to 1 July 2002, the day the
Rome Statute entered into force.240 This still leaves out some of the worst massacres the LRA conducted,
including the one in Atiak described earlier. Some observers have argued that the prosecution of Joseph
Kony before the ICC, with its limited temporal jurisdiction, runs the risk of ignoring the victims of these
crimes.241 At the same time, the temporal jurisdiction still includes enough crimes to put the LRA
commanders away for a long time, as the large amount of accusations in the ICC’s arrest warrants
illustrates.242 The atrocities for which Joseph Kony is allegedly responsible fall for the largest part within
the geographical scope of the ICC’s jurisdiction. Joseph Kony is a Ugandan national who committed
crimes mostly in Uganda, the DRC, and the Central African Republic, all states parties to the ICC. Some
discussion exists as to the applicability of the ICC’s jurisdiction for crimes committed by the LRA in
south Sudan during the LRA’s stay there. Sudan is not a state party and therefore the ICC does not have
jurisdiction there. Although the U.N. Security Council has referred the situation in Darfur to the ICC,
thus giving the ICC jurisdiction over crimes committed in parts of Sudan, this referral only extends to
the situation in Darfur, leaving out south Sudan.
In conclusion
It is clear that Joseph Kony can be prosecuted for individual criminal responsibility for serious
international crimes. Although the limited temporal and geographical jurisdiction of the ICC causes
some problems – especially with regards to the redress of victims – the ICC should have no problem to
put Kony away for a long time.
Branch, ‘Local Injustice’, 23.
Ssenyonjo, ‘Prosecution or Amnesty?’, 362-363.
240
Akhavan, ‘First State Referral’, 412.
241
Clark, ‘Peace, Justice and the International Criminal Court’, 525; Goetz, ‘Relevance to Affected
Communities’, 69.
242
Branch, ‘The Politics of ICC Intervention’, 180.
238
239
139
§3.3.3 Factors influencing the deterrence capability of the ICC
The International Criminal Court has as its explicit mandate, that it should prevent the most serious
crimes of concern to the international community by punishing those most responsible for them.243 By
posing a serious threat of prosecution to those who consider committing crimes, it was hoped that the
deterrent effect of the ICC would be powerful enough to dissuade more crimes from occurring.
Accordingly, when the ICC intervened in the situation in Northern Uganda, it claimed that it could help
to end the conflict by isolating and neutralizing the LRA’s top commanders. 244 In the analytical
framework, it was explained how the deterrent effect of legal sanction threats could best be assessed. In
this section, this framework will be applied to scrutinize the potential deterrent effect the ICC could
have on Joseph Kony. To do this, this section will analyze the certainty, severity, and celerity of the
legal sanction threat and make some observations as to how the experiential effect and Kony’s risk
sensitivity affected this potential deterrent effect. The way in which it was affected by extralegal sanction
threats and the ICC’s perceived legitimacy, will be studied in §3.3.4 and §3.3.5, respectively. It must be
said that, because the ICC has clearly failed to deter Kony from committing any further crimes, this
section will mostly be occupied with the explanation of how the deterrent effect of the ICC was either
not enough for or incapable of stopping Joseph Kony.
To start with the certainty of the legal sanction threat issued by the ICC, it can be said that the
objective certainty is rather low. So far, the ICC has only issued arrest warrants for 25 persons, of whom
it has secured the arrest of only 15, a little more than a half. It has only convicted one suspect, while
another has been acquitted. Moreover, the enormous amount of perpetrators left unprosecuted, has
caused the persistence of what Janine-Natalya Clark has called an ‘impunity gap’.245 Mostly, the small
amount of persons indicted and trials finished is due to capacity constraints – for example, the ICC can
only manage two to three cases a year.246 However, the ICC has also been accused of selective justice,
since it has so far mostly refused to indict officials and/or persons belonging to the state on which it
depends for cooperation.247 But even the ones who do get indicted, face a small chance of apprehension.
Indeed, in a discussion of the relevant interests of the ICC, the indicted suspects, and the international
community, James Meernik predicts that the most likely outcome of ICC indictments, at least initially,
243
As was mentioned earlier, the Preamble to the Rome Statute of the International Criminal Court states that it
has “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of
such crimes.”
244
Clark, ‘The ICC and Case Selection’, 42.
245
Clark, ‘Peace, Justice and the International Criminal Court’, 535. See also: Christopher W. Mullins and Dawn
L. Rothe, ‘The Ability of the International Criminal Court to Deter Violations of International Criminal Law: A
Theoretical Assessment’, International Criminal Law Review 10:5 (2010) 771-786, 780-781.
246
Akhavan, ‘The Rise, and Fall, and Rise’, 531; Clark, ‘Peace, Justice and the International Criminal Court’,
526.
247
Clark, ‘The ICC and Case Selection’, 44.
140
will be a stalemate, in which neither the suspected war criminals, nor the international community are
willing to make justice happen by letting a trial take place.248
It is likely that Joseph Kony does not perceive the certainty of the legal sanction threat made
against him to be higher than it actually is. In fact, it is probable that he will perceive it to be even lower.
First of all, it must be noted that in the first few years of the existence of the International Criminal
Court, up to the time that arrest warrants were issued, there seems to have been an ‘awareness problem’.
It was only after the Court demanded his arrest that Kony started to try and collect information about
the institution in The Hague.249 Once he did become aware of it, his reaction appears to have been
somewhat ambiguous, as is illustrated by someone who participated with him in a subsidiary of the Juba
peace talks: “[H]e [Kony] raised the issue of the ICC. At first he said that he did not fear it, because the
ICC would do nothing to him. Then he said he would not sign until the indictment was lifted.”250 The
fact that the world was now after Kony, definitely increased the international pressure on him. But after
the years went by and it turned out that he was able to defy apprehension by adapting some of its tactics
and changing its geographical focus (Kony has now been at large for over eight years), the perceived
certainty of eventually being sanctioned by the ICC has been downgraded significantly. As will be
discussed further below, the consequences of the experiential effect and Kony’s risk sensitivity
amplified this.
The severity of the ICC’s legal sanction threat is comparable to that of the ICTY. It cannot
impose the death penalty and Thomas Lubanga, the one suspect it has convicted so far, received a meager
sentence of 14 years for conscripting child soldiers.251 The way in which the severity of the legal sanction
threat is perceived is influenced by the fact that the situations the ICC has involved itself in so far are
marked by a particular brutality – the case against Joseph Kony is no exception here. (This is no surprise,
since the ICC can only prosecute cases which are of sufficient gravity.) In these situations, the price of
failure is already much higher than any punishment the ICC can deliver. Those who fail namely have to
often face torture and/or death. In these circumstances, the Court can hardly add a significantly severe
threat of punishment.252 Indeed, Julian Ku and Jide Nzelibe have argued that African coup plotters –
who, according to Ku and Nzelibe, are likely to violate international humanitarian law – are more likely
Meernik, ‘Apprehension of ICC suspects’, 187. It is relevant to note here that Meernik estimates the chance
that the international community will engage in securing the apprehension of a rebel leader to be bigger than it is
for government officials. See: Ibid., 187-188.
249
Green, The Wizard of the Nile, 234-235.
250
Iya, ‘A Madi perspective’, 182-183.
251
Alette Smeulers, Barbara Hola and Tom van den Berg, ‘Sixty-Five Years of International Criminal
Justice: The Facts and Figures’, International Criminal Law Review 13:1 (2013) 7-41, 24. Because the time
Lubanga has spent in ICC custody (he was transferred to The Hague on 16 March 2006) will be deducted from
his sentence, he will be released after 8 years, meaning he will be free again in 2020. See: International Criminal
Court, The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/03-01/06, available online at:
http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200
104%200106/Pages/democratic%20republic%20of%20the%20congo.aspx (2 December2013).
252
Meernik, ‘Apprehension of ICC suspects’, 178.
248
141
to face sanctions by domestic institutions – either legally or extralegally – than to be convicted by the
ICC. Furthermore, these sanctions are likely to be much more severe, because, for example, the ICC
cannot impose the death penalty. Thus, Ku and Nzelibe conclude, the limited certainty and severity of
ICC sanction threats are unlikely to pose much of an additional deterrent to potential violators. 253 The
low perceived severity of ICC punishment compared to other sanctions offenders might be facing,
appears to be the exact reason why Bosco ‘The Terminator’ Ntaganda surrendered himself to the
American embassy in March this year, asking to be handed over to the ICC, which had an outstanding
arrest warrant against him. After he lost a battle for the leadership of his M23 rebel group, he preferred
a lavish cell in The Hague over a sure death by his former rebel comrades.254 A similar analysis would
be applicable for Joseph Kony. It is unlikely that, after having lived for over 25 years in the bush with
the past few years fighting a constant struggle for survival, he will perceive a prison sentence to be a
particularly severe sanction for criminal behavior.255 However, punishment by the ICC might pose some
significant immaterial costs for Kony. If apprehended and subsequently convicted, he would lose his
power and position as the commander of the LRA. Joseph Kony might therefore perceive the ICC
sanction threat as reasonably severe.
As was noted in the first chapter, the fact that most legal punishment only comes after a lengthy
process of indictment, arrest, trials and appeals, makes the criminal justice system unsuited to exploit
human’s (instrumental/bounded) rationality.256 The lack of effective disincentives for the crime in situ,
makes the criminal justice system unable to counter its (usually) immediate incentives. The gap in time
between the crime and its punishment has been even larger for the ICC than for most domestic legal
systems.257 The lack of capacity, together with budgetary constraints limits the number of cases the
Court can handle at one time.258 For Thomas Lubanga, almost ten years elapsed before he was punished
for the crimes he committed.259 This long lapse of time between crime and punishment would mean that
the ICC is even less suited to pose as an effective deterrent. It does not seem that the distant threat of
being prosecuted by a far-away Court, especially given the long lasting culture of impunity, will be
Julian Ku and Jide Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian
Atrocities?’, Washington University Law Review 84:4 (2006) 777-834, 831-833.
254
Joseph Hammond, ‘M23’s Congo Cadres: The Rebel Movement with a Taste for Local Politics’, Think Africa
Press, (23 October 2013), available online at: http://thinkafricapress.com/drc/m23-cadres-key-grip-power (2
December 2013); Stewart McCartney, ‘Despite M23 Defeat, Militias Still Threat to Congo’, Institute for War
and Peace Reporting, (20 November 2013), available online at: http://iwpr.net/report-news/despite-m23-defeatmilitias-still-threat-congo (2 December 2013).
255
Ssenyonjo, ‘Prosecution or Amnesty?’, 371.
256
Raymond Paternoster notes that this is because the criminal justice system has other imperatives – justice
must be served and justice frequently takes time – which inhibit it to properly exploit human rationality. See:
Raymond Paternoster, ‘How Much Do We Really Know About Criminal Deterrence’, The Journal of Criminal
Law and Criminology 100:3 (2010) 765-823, 821.
257
Smeulers et al., ‘Facts and Figures’, 16-18.
258
Mullins and Rothe, ‘The Ability’, 780-781.
259
Lubanga was convicted for the crimes he committed between September 2002 and August 2003. Lubanga has
been implicated in crimes before that, but the limit to the ICC’s temporal jurisdiction means that the Court does
not have jurisdiction over these crimes. It can therefore be said that the time between the crimes and the
punishment is even longer.
253
142
perceived as a strong disincentive by future offenders. Joseph Kony has been committing grave human
rights abuses for over twenty years, and although the international community is now significantly
involved in the efforts to catch him, his streak of impunity endures. Thus, at the time that Joseph Kony
decided whether or not to continue committing crimes, the perceived celerity of punishment must have
been low.
The experiential effect contributed to the low perceived certainty and celerity. The information
Joseph Kony received from his own experience with the (international) criminal justice system, as well
as the information he received from the experiences of his peers, mostly caused Kony to downgrade his
perception of the certainty and celerity of the legal sanction threat issued by the ICC. First, Kony was
able to commit crimes without any serious international legal sanction threat for almost fifteen years
(from 1988 to 2002) before the ICC was established and it was in theory able to exercise jurisdiction
over crimes he would commit. In fact, in 2000 he was offered an amnesty for his crimes. Even after the
Court indicted him, he successfully evaded arrest and remains at large, even up to this day. Therefore,
his own experience with the (international) criminal justice system, does not point at a particularly high
chance of being sanctioned for his actions. Neither does the information coming from his peers, although
there is some reason to believe that he was aware of international successes in the international
prosecution of African war criminals, in particular the prosecution of Charles Taylor, the former
President of Nigeria who was accused of and subsequently arrested and convicted for crimes committed
during the civil war in Sierra Leone.260 Although this information would have been a reason to upgrade
his certainty perception, the experiences of his more direct peers were more congruent with his own.
There have been no trials for other LRA commanders. Like Kony, they were initially offered amnesty
and have been able to evade arrest after the ICC indictment. It is reasonable to assume that Kony
perceived the experiences of his more direct peers261 to be more reliable and comparable to his situation
and that they thus exerted a stronger influence on Kony. Therefore, the overall impact of the experiential
effect seems to be a downgrade in the perceived certainty and celerity of the international legal sanction
threat.
The fact that Kony has been able to evade apprehension for more than eight years, even though
the international effort to arrest Africa’s most wanted have greatly increased in recent years, points at
the high extent to which Kony is risk sensitive. There are many examples of Kony adapting his tactics
to decrease the chance of detection and/or apprehension. During the 1990s he situated his bases in South
Sudan, beyond the reach of the Ugandan government troops. When Operation Iron Fist was launched
by the UPDF in 2002, and the Ugandan army was allowed to operate in South Sudan up to the ‘Red
Line’, Kony moved the LRA bases further north beyond the reach of the UPDF, while he himself went
260
Green, The Wizard of the Nile, 233.
The President of Sudan, Omar al-Bashir, could also be counted among his more direct peers, since Bashir
gave the LRA significant support during the civil war in South Sudan. Bashir, also, has been able to evade arrest
since his ICC indictment, and has been able to defy the ICC with impunity.
261
143
in hiding in the largely inaccessible Imatong Mountains. Following the referral of the situation in
Northern Uganda to the ICC, Operation Iron Fist II was launched. At this point, pressure on Kony greatly
increased, both because of the seeming lack of support coming from Khartoum and the now increased
international efforts to stop him. Kony responded by once again relocating the LRA. Between September
2005 and early 2006, the LRA moved to the border region of the Central African Republic and the
Democratic Republic of Congo, where the LRA now remains.262 In the CAR and DRC, Kony has
deliberately been operating in areas like the Garamba National Park, where government presence is
minimal. Thus, risk sensitivity – defined in the Analytical Framework as “the extent to which the
offender is aware of the risk of being caught and takes measures to minimize this risk”263 – is a trait that
seems highly applicable to Joseph Kony.
In conclusion
To conclude, it seems that the ICC was unable to form a credible sanction threat in Kony’s eyes.
Although it might be argued that his perception of the severity of the ICC’s sanction threat was
reasonably high, Kony’s low perception of its certainty and celerity were responsible for significantly
detracting from the deterrent effect of the ICC’s sanction threat. The experiential effect – Kony’s own
experience and the experience of his more direct peers – furthermore point to a lowering of the sanction
threat’s credibility. Lastly, Kony’s actions betray a high risk sensitivity. Thus, although Kony might
have been deterrable, actually deterring him was and remains a significant task, a task the ICC is, at
least to this point, unable to complete.
On the website of the LRA Crisis Tracker, designed by the NGO’s Invisible Children – known for its Kony
2012 campaign – and The Resolve, the reports of the rebel group’s current activity are visualized. See: Invisible
Children and The Resolve, ‘LRA Crisis Tracker’, (2 December 2013), available online at:
http://www.lracrisistracker.com/ (2 December 2013).
263
This definition was given in §1.2.1. See also: Jacobs, ‘Deterrence and Deterrability’, 422-423
262
144
§3.3.4 Extralegal sanction threats
The social context in which Joseph Kony committed his atrocities – the context in which extralegal
sanction threats were issued that could have a powerful effect on Kony’s decision making process – was
for the most part made up of two different environments, Northern Uganda (mostly Acholiland) and the
LRA rebel group.264 The inhabitants of Acholiland were rather ambivalent in their attitudes towards the
LRA. Many Acholi had enough of Kony’s violence, his brutal attacks and abductions of their children.265
Clearly, the rebels had to take the majority of the blame for their predicament. At the same time, part of
the blame was also attributed to the government in Kampala. A large segment of Acholi society felt that
Northern Uganda was marginalized by Museveni. This sentiment was reflected in the outcome of the
1996, 2001, and 2006 presidential elections. In 1996 and 2001, fewer than 10 percent of the voters in
Northern Uganda supported Museveni, while in 2006 only 16 percent did so.266 Evidently, the
northerners were vehemently negative about the way in which they were being treated by the Kampala
government. Many Acholi felt that the UPDF’s policy of forced displacement was meant to neutralize
the north politically, with some even accusing of Museveni of trying to commit genocide against them. 267
With such a large share of the Acholi opposed to Museveni, it is understandable that at least some
sympathy existed for Kony and his rebel movement, even if they were unhappy about his methods.268
As such, it can be said that the inhabitants of Acholiland were not so much supportive of Kony and the
LRA, as they were opposed to Museveni.269 Also, it must not be forgotten that a majority of the LRA
fighters were abducted as a child and had been forced to commit atrocities. Many people felt that these
children were not perpetrators, but victims, and, although brainwashed, remained ‘their children’. 270
These sentiments were manifestly expressed in the widespread support for the 2000 Amnesty Law. In
short, the inhabitants of Acholiland displayed an ambivalent attitude towards Kony and the LRA, and
therefore, extralegal sanction threats were not issued with as much force as might be expected from a
community terrorized for decades.
It is acknowledged that ‘the social context’ is not some homogenous set of people. The many different actors
who made up the Acholi society were not of one mind. Some hated Kony, some were ambivalent, others were
supportive of his cause, but opposed to his methods, while many others fell somewhere in between. Nor were the
LRA fighters were all of one mind. Even though they lived in a hierarchical rebel group with a strict
disciplinarian and spiritual order, which made them more homogenous than Acholi society in general, some
fighters were completely entranced by the group’s cause – becoming enthusiastic killers and effective soldiers –
while others were mostly homesick, tried to exclude themselves from the atrocities and often tried to escape.
265
This was already so in 1997. See: Robert Gersony, The Anguish of Northern Uganda: Results of a field-based
assessment of the civil conflicts in Northern Uganda (Kampala: USAID Mission, 1997) 59. Christopher
Blattman similarly argues that the overwhelming majority of the Acholi did not support Kony. See: Blattman,
‘From Violence to Voting’, 235.
266
Finnström, ‘Another story’, 78-79.
267
Green, The Wizard of the Nile, 118-119.
268
Still, some Acholi saw Kony as a ‘freedom fighter’. In their view, the violence could be legitimized, since
“when you can do nothing” in a conventional manner to solve your problems, only violence remains. See:
Finnström, ‘Another story’, 83.
269
Ibid., 78-79.
270
Green, The Wizard of the Nile, 96-97.
264
145
The other social environment in which Kony operated was the LRA. It is often noted that this
group bears similarities to a cult. Its fighters are abducted, brainwashed, and forced to commit atrocities.
Kony has great spiritual authority over his fighters and his violent means of submission have deterred
many fighters from running away.271 Apart from versions of Stockholm syndrome, the apparently
incomprehensible loyalty of the abductees is fostered by an elaborate initiation process. Indeed, Opis
Oloya describes the process through which the LRA recruits are transformed into LRA members,
undergoing various initiating rituals, such as witnessing or participating in the killing of innocent
civilians. Usually these rituals, although not clearly structured, include components like Lwoko wii
Cibilan (washing the civilian mind), Neko Dano (killing a person), and Pwonyo Mony (military
training).272 These abductees are transformed from innocent civilians into killing machines by a brutal
regime and the encouragement of violence. During the training, killing is deliberately trivialized, and
even encouraged by promoting those fighters who participate in the worst atrocities.273 Moreover, it has
been reported that life in the LRA camps is strictly hierarchical and that minor transgressions are
punished by severe beatings and sometimes even killings.274
Therefore, it seems highly unlikely that LRA fighters would sanction (what is defined by the
ICC as) criminal behavior by using extralegal punishments such as shaming and embarrassment. It is
rather more likely that the opposite is true: LRA fighters are punished for trying to withdraw themselves
from or refusing to participate in killing activities. If Kony would give in to the ICC’s demands, stop his
violence and turn himself over for judgment in The Hague, he would so completely abandon all the
values he once professed to his peers that he would most likely be completely shunned by them. Thus,
the social context of the LRA in fact issues extralegal sanction threats which do not deter violence, but
deter non-violence. Although indicting leaders of violent groups can sometimes create pressure coming
from within the group by stigmatizing and delegitimizing its leader – which, to some extent, happened
with Slobodan Milosevic –, in the context of the LRA this is contestable “given the composition of the
LRA, which is made up in great part of those conscripted as children who fear Kony’s threats of violence
and spiritual authority”.275
As was mentioned in the first chapter, the importance of extralegal sanction threats can be
increased in contexts in which the rule of law is lacking and the trust in formal sanctioning institutions
is generally low. Although such a situation is often applicable to contexts in which mass atrocities take
place, multiple observers have noted that Uganda has a proudly independent and efficient judicial
Akhavan, ‘First State Referral’, 407-408. Akhavan refers here to a 2001 report on Northern Uganda by the
UN High Commissioner for Human Rights.
272
See: Oloya, Child to Soldier, 78-95.
273
Allen, Trial Justice, 141.
274
Akhavan, ‘First State Referral’, 408.
275
Branch, ‘The Politics of ICC Intervention’, 183.
271
146
institution.276 However, Uganda’s judiciary does not seem to be able to effectively adjudicate crimes
committed by high-ranking government officials, let alone crimes committed by rebel forces such as the
LRA.277 A certain culture of impunity thus persists here. It is unlikely that the domestic courts are able
to exercise much of a rule of law in the context of the rebel camps in the bush, although there is no
specific reason to believe that Kony does not trust the Ugandan judiciary or sees it as illegitimate –
which is the case for his perception of the ICC, which he does not trust and sees as an illegitimate
extension of Museveni’s war against him. Still, the absence of any functioning judicial institution in the
context of the LRA camps in the bush, increases the importance of extralegal sanction threats to regulate
deviant behavior. Since deviant behavior is defined in this context as the refusal to participate in serious
crimes, the social context is actually working against the prevention of criminal behavior.
In conclusion
The ambivalent attitude in Northern Uganda with regards to the LRA and Joseph Kony – with some
condemning his struggle as brutally criminal, others agreeing with his ultimate goal while condemning
his methods, and still others praising him as a freedom fighter – decreased the power of the extralegal
sanction threats that could have been issued by this social environment. In the social context of the LRA,
this situation was even worse. The lack of a functioning judicial institution which could have punished
criminal behavior by the rebel group, increased the reliance on extralegal sanctions to regulate deviant
behavior. Yet, because deviant behavior in this context was defined as the refusal to participate in crimes,
the social environment here was issuing extralegal sanction threats that actually worked against the
prevention of mass atrocities.
This argument is usually made in the context of the admissibility challenge to the ICC’s jurisdiction in the
Ugandan situation. See: Clark, ‘Re-Framing the Debate’, 143-144; Kastner, The ICC between Law and Politics,
48-52, 60-67; Ssenyonjo, ‘Prosecution or Amnesty?’, 368.
277
For example, a recent report by Human Rights Watch finds a persistent failure to prosecute high-level
corruption in Uganda. See: Human Rights Watch, “Letting the Big Fish Swim”: Failures to Prosecute HighLevel Corruption in Uganda, (21 October 2013), available online at:
http://www.hrw.org/sites/default/files/reports/uganda1013_ForUpload_0.pdf (2 December 2013). Of course,
there are some problems in the judiciary’s exercise of jurisdiction over former LRA fighters and/or commanders,
since the Amnesty Law of 2000 gives them an amnesty if they surrender voluntarily.
276
147
§3.3.5 Legitimacy of the ICC
The impact of the ICC on Joseph Kony’s criminal decision making process was affected by the
legitimacy of the Court, about which there has been some vigorous debate. To analyze this debate, it is
useful to distinguish between two different views on legitimacy. The first, which would see the
legitimacy of an international criminal tribunal as defined by a firm legal basis and fair proceedings
during its trials, might judge the ICC to be more legitimate than the ICTY. The ICC’s jurisdiction does
not come from a Resolution by the Security Council, but rather from a signed treaty that has been ratified
by Uganda itself.278 In first instance, the Court does not have jurisdiction in those states that have refused
to acknowledge it. As such, it would be hard to claim that the ICC’s exercise of its jurisdiction in Uganda
is illegitimate from a legal standpoint.279 The admissibility of the Ugandan case before the ICC, however,
has been doubted by some scholars. According to the complementarity principle, for the ICC to assume
jurisdiction, the national judiciary has to be either unwilling or unable to prosecute crimes articulated in
the Rome Statute. Neither seemed to apply to the Ugandan judiciary. It seems that the only reason why
Joseph Kony could not be tried by Uganda was the UPDF’s inability to apprehend him. This observation
raises some questions with regard to the motives behind the acceptance of the case by the ICC. 280
Although the ICC was probably motivated mostly by actual concern for the bringing of justice to those
responsible for atrocities in Northern Uganda, institutional interests also definitely played a role. The
ICC was eager to establish its institutional legitimacy by accepting its first case. The situation in
Northern Uganda, where it seemed clear that horrendous atrocities had been committed on a large scale
and as part of a systematic policy, thus looked like a promising first.
The more important view on legitimacy for this study, however, is the way in which the
legitimacy of the ICC was perceived by its audience in Northern Uganda, especially by Kony. The ICC
intervention in the situation in Northern Uganda was highly controversial, and was sometimes met with
outright hostility by the affected community. Many Acholi questioned the motivations of Yoweri
Museveni for referring the situation to the ICC. They saw the move as another step towards
marginalizing the north, doubted Museveni’s desire for ‘justice’, and were angered by the fact that the
ICC referral seemed to run roughshod over local demands, which asked for an end to the conflict by a
combination of amnesty and traditional reconciliation processes.281 One of the most often-cited reports,
written by the Kampala-based Refugee Law Project, clearly stated the demands of this group of people:
278
Still, Adam Branch criticizes the fact that the ICC is not democratically accountable to the victims of mass
atrocities. See: Branch, ‘The Politics of ICC Intervention’, 193-194.
279
See also: Margaret M. DeGuzman, ‘Gravity and the Legitimacy of the International Criminal Court’,
Fordham International Law Journal 32:5 (2008) 1400-1465
280
Clark, ‘Re-Framing the Debate’, 143-144; Kastner, The ICC between Law and Politics, 57-67; Roach,
‘Multilayered Justice’, 186-188.
281
Adam Branch and Katherine Southwick have argued most forcefully for this point. See: Branch, ‘Local
Injustice’, 25-26; Branch, ‘The Politics of ICC Intervention’, 182-190; Southwick, ‘Investigating War’, 105-119.
For counterpoints, cf: Clark, ‘Peace, Justice and the International Criminal Court’, 543-544; Ssenyonjo,
‘Prosecution or Amnesty?’, 384-389.
148
Peace First, Justice Later.282 Similarly, the Acholi Religious Leaders Peace Initiative was worried about
the effect the ICC intervention would have on the peace process.283 In the opinion of this group, the
Acholi themselves had clearly stated their support for the Amnesty Law of 2000 and furthermore
preferred their own version of justice – the earlier described mato oput ceremony – which emphasized
restorative justice over the ICC-delivered retributive justice. Although the ICC Prosecutor reached out
to these people by inviting them to The Hague in March/April 2005 – leading to a joint statement by
Moreno-Ocampo and Acholi leaders that they would cooperate on the issue284 -, the exact way in which
the problem would be resolved remained a point of contention.285 On one hand, the Acholi did seem to
profess support for the ICC trial of those most responsible for the serious crimes committed in Northern
Uganda. Multiple opinion polls concluded that a large share of the Acholi were not ready to extend
forgiveness to the LRA leaders.286 On the other hand, research by Otim and Wierda has shown that
victim views are complex and changing over time. For example, a 2005 opinion poll suggested that a
majority of the victims preferred hard – military, retributive – measures over soft – amnesty, restorative
– measures to deal with the LRA, while a 2007 poll showed that these statistics were reversed.287 As
such, it is hard to say something conclusive about the views of the wider Acholi population on the ICC
intervention. This has a lot to do with the population’s ambivalent view on the LRA itself, which has
been handled in greater detail in §3.3.4.
In any way, the ICC did not receive the welcome in Uganda that it might have expected or
wished for. Apart from the peace vs. justice debate outlined above, this was caused to a large extent by
the perceived partiality emanating from the ICC’s cooperation with Museveni’s government. The stage
was already set for this perception in January 2004. The press conference in London – in which the ICC
Prosecutor and Museveni jointly announced that the Prosecutor accepted the ‘situation regarding the
LRA’ –, gave rise to suspicions that the ICC would only investigate crimes committed by the LRA and,
because of dependence on the Ugandan government, would ignore crimes committed by the UPDF.
Apart from massacres and lootings in the context of the counter-insurgency campaign, the forceful
displacement by the UPDF of a large share of the Acholi population into the poorly protected IDP camps,
with abhorrent living conditions, perhaps caused even more suffering than the LRA attacks. This
campaign of forceful displacement of over a million people moreover clearly falls under the jurisdiction
282
Lucy Hovil and Joanna R. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda,
Refugee Law Project Working Paper No. 17, (July 2005), available online at:
http://www.refugeelawproject.org/working_papers/RLP.WP17.pdf (2 December 2013).
283
Apuuli, ‘ARLPI’, 122-125.
284
International Criminal Court, ‘ICC – Joint Statement by ICC Chief Prosecutor and the visiting Delegation of
Lango, Acholi, Iteso and Madi Community Leaders from Northern Uganda’, ICC Press Release, (16 April
2005), available online at: http://www.icccpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/press%20releases/Pages/jo
int%20statement%20by%20icc%20chief%20prosecutor%20and%20the%20visiting%20delegation%20of%20lan
go%20ach.aspx (2 December 2013).
285
Kastner, The ICC between Law and Polities, 56.
286
Allen, Trial Justice, 147-148; Roach, ‘Multilayered Justice’, 254-255.
287
Otim and Wierda, ‘Juba peace talks’, 26.
149
of the ICC: Articles 7(1)(e) and7(2)(d) of the Rome Statute brand such a policy a crime against
humanity. The ICC Prosecutor has defended its decision not to issue warrants of arrest against those
responsible for these crimes on the grounds of gravity, claiming that the LRA crimes are far more grave
than any of those committed by UPDF troops.288 Many independent observers have noted that the
Prosecutor’s decision on the basis of gravity is unconvincing, pointing instead to the ICC’s dependence
on the government of Uganda for assistance in its proceedings.289 Also, it has been stressed that the
Prosecutor’s decision is hardly explainable to the victims of the UPDF crimes.290 Therefore, even if the
decision by the Prosecutor not to prosecute UPDF crimes can be justified on legal grounds, the failure
to do so has powerfully degraded the impartiality and legitimacy of the ICC in the eyes of the Acholi
population.
Joseph Kony’s perception of the ICC’s legitimacy seems to be affected by similar ideas about
the judicial institution’s partiality. Kony has stated that the ICC is simply an instrument of Museveni’s
battle against him and his LRA.291 In Kony’s mind, the sometimes highly visible connection of the ICC
with government troops – ICC investigators have reportedly travelled in government vehicles and have
been escorted by UPDF troops during their activities292 - has made the Court synonymous with
Museveni’s government and thus clearly biased against him. Lately, the increased effort by the
international community to apprehend him in order to execute the Court’s arrest warrants, has further
exacerbated this. Because the ICC in this sense is the enemy – the power responsible for his predicament,
forcing him to constantly be on the run – there is little chance that Kony will perceive the ICC to be
legitimate and thus a rightful restriction of his behavior. Indeed, Tyler’s theory of procedural justice as
a basis of legitimacy, which was described in the first chapter, predicts this.293 In Kony’s perception, the
ICC’s one-sided arrest warrants – all aimed at Acholi – are unfair and discriminatory, and do not respect
his social status. As such, Kony’s perception of the ICC as an illegitimate court, is to some extent
explained by the ICC’s perceived procedural unfairness.
One more factor that has unfavorably impacted the Court’s legitimacy is its physical remoteness
and the perceived imposition of Western justice models.294 For many Acholi, the ICC’s trials are seen
as a “foreign and remote process”, which has little impact on the people’s daily lives.295 This recalls the
Clark, ‘The ICC and Case Selection’, 43; Ssenyonjo,’Prosecution or Amnesty?’, 365. Yet, Akhavan stresses
that the ICC, as an independent judicial institution, should not concern itself with issues such as reconciliation.
In his view, the ICC’s impartiality would be tarnished even more if it were to accuse and convict persons without
sufficient evidence only to ‘spread the blame’. See: Akhavan, ‘Rise, and Fall, and Rise’, 533.
289
Clark, ‘The ICC and Case Selection’, 44; Otim and Wierda, ‘Juba peace talks’, 22.
290
Clark, ‘Peace, Justice and the International Criminal Court’, 524-525, 529.
291
Schomerus, ‘Interview with Kony’, 127-129.
292
Allen, Trial Justice, 97.
293
See: Tom R. Tyler, ‘Procedural Justice, Legitimacy, and the Effective Rule of Law’, Crime and Justice 30
(2003) 284-357; Tom R. Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’, Annual Review of
Psychology 57 (2006) 375-400. For more, see: §1.2.3.
294
Clark, ‘Peace, Justice and the International Criminal Court’, 532-534; Otim and Wiarda, ‘Juba peace talks’,
22.
295
Goetz, ‘Relevance to Affected Communities’, 68, 70-71.
288
150
old aphorism that ‘justice has to be seen to be done’. Although Outreach work has significantly improved
since the days of the ICTY’s inception, the ICC has still been accused of spending too little efforts on
explaining its decisions to the Ugandan population, thus doing little to counter the narratives of partial
justice.296 The perceived imposition of a Western model of criminal justice, has further led to a
questioning of the cultural relevance of the ICC to Africa, since it is largely seen as an embodiment of
Western values.297 Its focus on Africa, a symptom of which is the fact that the Court has so far only
issued arrest warrants against African persons, has exacerbated these sentiments.298 Furthermore, the
high financial costs of the Court has sparked some outrage, with some people in the IDP camps
clamoring that millions are spent on a far-away court, while the Acholi were starving in the camps.299
This (physical and emotional) remoteness of the ICC judicial process has also had an impact on the way
296
Ibid., 66-67.
Graeme Simpson, ‘One among Many: The ICC as a Tool of Justice during Transition’, in: Nicholas Waddell
and Phil Clark, Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, 2008)
73-80, 77
298
That the ICC seems to exclusively focus itself on the African continent has been one of the major accusations
leveled against it by African leaders. It is a sensitive suspect among many African leaders, especially in the context
of the West’s colonial history. See: Nicholas Waddell and Phil Clark, ‘Introduction’, in: Nicholas Waddell and
Phil Clark, Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, 2008) 7-12,
8-9. The Sudanese president Omar al-Bashir was one of the first to liken the ICC’s intervention in his country as
a neo-colonial breach of his country’s sovereignty. As a reward, the African Union declared in July 2009 that it
would no longer assist the ICC in apprehending Sudanese suspects. See: Clark, ‘Peace, Justice and the International
Criminal Court’, 524; Nkansah, ‘Emerging Dynamics’, 76; Kenneth A. Rodman, ‘Darfur and the Limits of Legal
Deterrence’, Human Rights Quarterly 30:3 (2008) 529-560, 543; Dawn L. Rothe and Christopher W. Mullins,
‘Beyond the Juristic Orientation of International Criminal Justice: The Relevance of Criminological Insight to
International Criminal Law and its Control. A Commentary’, International Criminal Law Review 10:1 (2010) 97110, 105. This argument has recently gained more traction with the Kenyan opposition to the ICC’s case against
the country’s President Uhuru Kenyatta and Vice-President William Rutto. In October 2013, the African Union
convened a special meeting to discuss a possible retreat by the organization from the Rome Statute, which the
Kenyan parliament had already voted for. Eventually, the African Union decided not to do so, instead issuing a
declaration that called upon the Court to cease its prosecutions and investigations against sitting heads of state.
See: Benjamin Minegar, ‘Africa leaders should be immune from ICC prosecution: AU’, Jurist, (13 October 2013),
available online at: http://jurist.org/paperchase/2013/10/africa-leaders-should-be-immune-from-icc-prosecutionau.php (2 December 2013); Manisuli Ssenyonjo, ‘The Rise of the African Union Opposition to the International
Criminal Court’s Investigations and Prosecution of African Leaders’, International Criminal Law Review 13:2
(2013) 385-428. Understandably, the ICC has not been particularly accepting of such declarations and challenges
to its legitimacy. However, according to Tomas Zak, it is losing the public perception battle, and seems to be
unable to counter the narratives that it is a neocolonial and imperial institution intent on the removal of African
leaders who are not favored by the West. See: Tomas Zak, ‘Kenyatta in Court’, Think Africa Press, (12 November
2013), available online at: http://thinkafricapress.com/kenya/manipulation-and-misinformation-kenyatta-and-iccquestion (2 December 2013). Interestingly, the social psychological model of perceived legitimacy put forward by
Stuart Ford, seems particularly applicable in this context. This model suggests that the perceived legitimacy of
international criminal justice institutions are mostly determined by whom they indict. For example, Moses
Chelang’a has observed that the opinion that African leaders have of the ICC, “seems to depend on whether it is
they or their opponents who face charges”. Quoted in: Bernard Momanyi, ‘Ugandan Leader Lashes Out at ICC’,
Institute for War and Peace Reporting (20 April 2013), available online at: http://iwpr.net/report-news/ugandanleader-lashes-out-icc (2 December 2013). To conclude, it is clear that the ICC is facing a serious challenge to its
legitimacy because of its apparently exclusive focus on the African continent. At the moment, there is little reason
to believe that this will soon change. However, as long as the ICC does not give more attention to these arguments,
neither will the opinions of many Africans who believe that the ICC is just another imperialist institution created
by the West to punish African leaders.
299
Green, The Wizard of the Nile, 85. See also: David Wippman, ‘The Costs of International Justice’, The American
Journal of International Law 100:4 (2006) 861-881.
297
151
in which Kony perceived the Court’s legitimacy. Apart from the increased effort to apprehend him,
Kony has come in little contact with the Court, for a long time feeding his feeling that he had nothing to
be afraid of.
It turned out that the low perceived legitimacy which troubled the ICC’s legal sanction threat in
Northern Uganda, was and is interrelated with the certainty of this sanction threat. As was noted earlier,
a low certainty of arrest decreases the court’s legitimacy.300 Indeed, had the Court been more successful
in securing the arrest of all of its suspects, the Court’s effectiveness in removing spoilers to an effective
peace process might have been perceived very differently. Moreover, the low perceived legitimacy
caused the certainty of the legal sanction threat to decrease. Because of the ambivalent attitude of the
population towards the Museveni government and the ICC, many people were still willing to assist the
LRA. There have been multiple reports of villagers providing the LRA with food and medicine. High
ranking negotiators were similarly reluctant to assist the ICC in arresting its suspects.301 People like Riek
Machar, leader of the Juba peace talks, had various meetings with Kony. However, he refused to be
accompanied by soldiers who could arrest him, citing the prevalence of peace over justice as his
motivation. At one point, Machar even supplied the LRA with $20.000 to buy food and medicine.302
The unwillingness of much of the Acholi population to assist in the ICC’s efforts to arrest LRA soldiers,
caused by their low perception of the ICC’s legitimacy, therefore caused the certainty of the ICC’s legal
sanction threat to decrease accordingly. Thus, the perceptions of the legitimacy and certainty of the
ICC’s legal sanction threat interacted and reinforced each other, facilitating Kony’s decision to ignore
the threat even more.
In conclusion
The ICC’s legitimacy from a legal standpoint, although somewhat tarnished by doubts about
admissibility in the Ugandan case, seems to be powerfully established. The ICC’s procedural fairness,
especially in the eyes of Kony, is much less secure, however. Because there is a perception among many
Acholi, including Kony, that the ICC is biased in favor of Museveni’s government, the Court has run
into troubles with its activities in Uganda. The highly emotional peace vs. justice debates resulting from
the ICC’s alleged spoiling of the peace process and the remoteness of a foreign-based and culturally
alien criminal court are exacerbating these troubles. These troubles have led to a low perceived
legitimacy of the ICC in Northern Uganda, and by Kony in particular. The low perceived legitimacy has
in turn lowered the certainty of the ICC’s legal sanction threat.
See: Dawn L. Rothe and Victoria E. Collins, ‘The International Criminal Court: A Pipe Dream to End
Impunity?’, International Criminal Law Review 13:1 (2013) 191-209, 196-197.
301
Green, The Wizard of the Nile, 232.
302
Ibid.
300
152
§3.4 Summarizing the findings of this chapter
Joseph Kony was a central – if not the central – actor in the conflict that has devastated Northern Uganda
for over two decades. His rebel group, the Lord’s Resistance Army, has been responsible for mass
abductions of children, mutilations and massacres. Meanwhile, the Ugandan President Yoweri
Museveni’s Uganda’s People Defense Force has waged a brutal counterinsurgency campaign in an
attempt to destroy the LRA. By forcibly displacing over a million inhabitants of Northern Uganda into
IDP camps, the UPDF has made the life of Northern Ugandans even more miserable. With help from
Sudan, Kony was able for a long time to easily defend himself from the UPDF campaigns. After the
Ugandan government referred the situation to the jurisdiction of the newly established International
Criminal Court, however, international pressure greatly increased, causing the LRA to move its area of
operations to the DRC and CAR. But the ICC was unable to deter Kony from more violence. Although
diminished in size and capability, the LRA remains in the DRC and CAR, regularly committing crimes.
This chapter has studied the way in which the ICC influenced Kony’s decision making, trying to answer
the question of why the ICC was unable to deter Kony.
It started out by assessing Kony’s rationality, motivation, and personality, all factors that have
to be factored in when looking at Kony’s reaction the ICC legal sanction threat. It was concluded that
Kony’s apparent irrationality might be overstated, and it was stressed that Kony’s handling of the LRA,
including its spiritual and military order, betray at least some rational aspects. Kony’s motivation has
been studied through Finnström’s looking glass, who stresses that the LRA has both spiritual and earthly
motivations. The group definitely has political motivations, despite the government’s persistent refusal
to acknowledge it. This refusal can be seen as a deliberate attempt to portray the LRA as a bunch of
lunatics led by a psychopath, so that the government does not have to take its demands seriously. At the
same time, Kony’s main value seems to be his own survival, and the acquirement of or holding onto
power. Joseph Kony’s personality was much harder to assess. By pointing at Kony’s unpredictability,
charisma, sensibility for betrayal, and his difficulty with coping with unfamiliar events, a sketch of
Kony’s personality was nevertheless given.
Next, the interaction between Joseph Kony and the ICC was studied. After describing the ICC
and Kony’s legal responsibility, the analysis of factors impacting the ICC’s perceived deterrence
capability, resulted in the conclusion that Joseph Kony must have perceived the legal sanction threat as
having low certainty, reasonable severity, and low celerity. The experiential effect and Kony’s risk
sensitivity exacerbated these effects, eventually leading to a perception that the ICC sanction threat was
rather incredible. While extralegal sanction threats could have compensated for this, the social contexts
– Acholi society and the LRA – in which Kony operated were rather lackluster about issuing extralegal
sanction threats to Kony. In the context of the LRA, extralegal sanction threats instead formed against
not committing crimes. The ICC has moreover been running into troubles with the public perception
battle about its legitimacy. Its alleged partiality in the Ugandan case has significantly detracted from its
legitimacy, both in the eyes of many Acholi and in Kony’s eyes.
153
All these factors play a role in explaining why Joseph Kony was not deterred from committing crimes
and why the International Criminal Court was unable to prevent further violence after it accepted the
situation in Northern Uganda. As such, Kony’s reaction to the ICC can be best described as indifference.
154
Conclusion
This contribution has studied the potential deterrent effects of the legal sanction threat delivered by
international criminal courts and tribunals through an actor-centric perspective. In this section, the
results of this study will be brought together and the findings from the two case study’s – that of
Slobodan Milosevic and that of Joseph Kony – will be analyzed and compared, in order to get a clearer
idea of the effects of international legal sanction threats, both on government agents and on members of
militias.1 The effects of the legal sanction threats and the way Milosevic and Kony reacted to them bore
some similarities, although they also quite often varied. This gives substance to one of the statements
made in the analytical framework, namely that it is important to realize that the effects of legal sanction
threats are not the same for everyone, as they are affected by individual differences in their rationality,
motivation, and personality. This section will close by putting the findings in context, looking at some
problems for the hoped-for deterrence by international criminal tribunals, and, finally, recommending a
way forward.
The conflicts in Northern Uganda and the former Yugoslavia were extremely brutal, with
hundreds of thousands innocent civilians being massacred, mutilated, and suffering in other ways, on a
daily basis for years. While the conflicts in the former Yugoslavia were mostly dominated by ethnic
struggles with relatively large-scale rather conventional battles taking places, the conflict in Northern
Uganda is characterized by an insurgency in an underdeveloped region led by a spiritual medium using
guerilla tactics against anyone found to be ‘impure’. In both conflicts, it looks as all sides can be held
responsible for gruesome crimes, although some men stand out as being most responsible. Both
Slobodan Milosevic and Joseph Kony were allegedly responsible for an enormous amount of crimes,
involving thousands of victims. Although neither Milosevic nor Kony have been found guilty in court,
it is widely accepted historically that these men were among those most responsible for the atrocities in
the former Yugoslavia and Northern Uganda, the Democratic Republic of Congo and the Central African
Republic. Their involvement in the atrocities differed, however and this also led to a different
construction of their legal responsibility, as was set out in §2.3.2 and §3.3.2. Joseph Kony was a militia
leader quite directly involved in the slaughter and mutilation of civilians. The abducted children became
‘his’ children, and he took part in educating – i.e. brainwashing – them. Milosevic, on the other hand,
was more indirectly responsible – at least in a legal sense – for the atrocities committed by Bosnian and
Croatian Serbs as well as Serbian paramilitary groups. He never supervised atrocities or directly
participated in them – he just gave the orders.
In both conflicts, the international community’s response was at first marked by a general
unwillingness to become too deeply involved, symptoms of which were the hopes pinned on the
International Criminal Tribunal of the former Yugoslavia and the International Criminal Court. The
1
The reader is referred to the tables at the end of the first chapter for the relevant theories that are used in the
assessment of the case studies.
155
violence only ended, however, after the international community supported more powerful responses
and geopolitical concerns shifted: in the former Yugoslavia, Milosevic was stopped by the use of a largescale air campaign; in Northern Uganda, Joseph Kony was driven out of Northern Uganda when
Sudanese aid largely ceased, and the Ugandan army – assisted by American Special Forces and
peacekeepers from the U.N. and African Union – was able to operate across borders more effectively.
The savagery that was the result of the actions of Milosevic and Kony makes it somewhat
irresistible to see them as ‘Butchers’ and ‘Messianic Mad Men’, whose acts defy rational understanding
and who must therefore be irrational actors. And indeed, they both played on seemingly irrational
elements in their respective societies to increase their authority and garner support. Milosevic made use
of the nationalistic tendencies and feelings of victimhood amongst the Serbian population in the former
Yugoslavia, while Kony emphasized his ability to communicate with the spirit world and professed a
willingness to rid the world of the ‘impure’. But such notions are not entirely helpful for a deeper
understanding of Milosevic and Kony. The political uses of overemphasizing the actors’ irrationality
should not be forgotten here. Especially in the case of Kony and his LRA, journalists and government
agents – amongst others the country’s president Yoweri Museveni – have portrayed the LRA as a ‘bunch
of fundamentally irrational lunatics led by a psychopath’ in order to preclude a deeper understanding of
the conflict and marginalize the group’s political wishes. The actions of Kony and Milosevic definitely
had ‘rational’ elements, reminding of the observation in the first chapter that rationality is not defined
by its substance, but rather by its consistency. That being said, Kony’s and Milosevic’s decision making
process were still affected by computational difficulties, cognitive biases, emotions and individual
differences, perhaps a bit more than for ‘normal’ state leaders familiar to Western countries. Both men
were emotionally unstable and their limited information pool – Milosevic was surrounded by yes-men
and Kony’s time in the bush for a large part precluded access to information – worsened the effects of
computational difficulties and cognitive biases. As such, Kony and Milosevic mostly conformed to the
bounded rationality model presented in the analytical framework.
While studying Kony’s and Milosevic’s motivation, it is striking that both men were concerned
with a mix of selfish motives and (at least rhetorically) concern for the well-being of their own ethnic
group. It must be stressed that what both men seemed to value most was their own survival and the
acquirement or maintenance of power. With little moral norms to regulate this pursuit, this value was
usually most salient and sometimes got in the way of their other motivations, such as when Milosevic
abandoned the Bosnian and Croatian Serbs during the Dayton peace process. But Kony and Milosevic
also greatly differed in important aspects of their motivation, and not only in substance. For example,
Milosevic’s wife, Mirjana Markovic, was hugely influential in the construction of Milosevic’s
motivation. Keeping her, and his family, happy was a central value for Milosevic. Moreover, Kony’s
ideological agenda was mostly concerned with the purification of Acholi society. The eradication of
everything impure – basically almost anything opposed to him – was an important element of Kony’s
motivation. Kony’s political agenda seems to be more consistent than was the case with Milosevic,
156
however. The overthrow of Museveni’s government has been propagated for 25 years now, while
Milosevic seemed to adjust his political demands to what suited him best.
Kony’s and Milosevic’s personalities are also somewhat alike and at the same time hugely
different. Observers noted that Milosevic and Kony were somehow hugely charismatic, with Milosevic
being beloved by many Serbs and Kony being idolized by the LRA members. Moreover, both men were
easily angered, and struck out viciously when seriously confronted. Kony’s promise to Betty Bigombe
to “shock the world” after the failed 1994 peace negotiations was the prelude to a Sudanese-supported
campaign of increased violence and abductions. Milosevic was rather unscrupulous with his enemies,
and although he usually did not maim or kill them like Kony did, he made sure they were made
politically and socially dead. Yet, at the same time, Milosevic was much more of a jovial host than
Kony, who was usually unwilling to receive journalists and hostile to outsiders. This was probably
caused by the sophistication that comes with being a political animal like Milosevic, while Kony has
been living in the bush for decades. Moreover, Milosevic and Kony differed in the applicability of the
Dark Triad of personality types. While Milosevic clearly looked like a narcissist, Machiavellist, and
(subclinical) psychopath, the same cannot be said for Kony. Kony, although somewhat narcissistic and
often seen as a psychopath, does not look like much of a Machiavellist. The individual differences have
some important explanatory power in understanding the ways in which Kony and Milosevic differed in
their reactions to the international legal sanction threat.
This legal sanction threat can be broken down by looking at its certainty, severity, and celerity.
With regards to certainty, both the ICTY and the ICC have had – or are still having – significant
problems with the apprehension of its suspects. Neither possesses its own police force, and the assistance
of the international community was and is not always as straightforward as needed. Although the ICTY
has now secured the arrest of all of its suspects, the enormous amount of perpetrators left unpunished
does not bode well for its certainty. This has to do with capacity and budgetary constraints which also
mark the ICC’s operations. These constraints limit the number of suspects that can be prosecuted and
increase the risk of selective justice. Thus, the perceived certainty, which criminologists have identified
as a crucial element of the legal sanction threat, was low. While the legal sanction threat’s severity might
have been relatively high – mostly because of the damage a conviction might cause to a person’s social
status – this does not seem to have had a particularly significant effect on either Milosevic or Kony.2
The fact that it usually took a long time for the ICTY and ICC to prosecute and punish its suspects,
furthermore led to a low perceived celerity.
Moreover, the negative effects of the factors described above, were exacerbated by the
experiential effect and the men’s risk sensitivity. The fact that both Milosevic and Kony were able for a
long time to get away with their crimes , with Milosevic at one time being hailed as a peacemaker and
2
It could be mentioned that this was to some extent expected, since criminologists have usually found that the
severity of the legal sanction threat does not increase its deterrent effect.
157
Kony being offered an amnesty, decreased the deterrent effects of the ICTY’s and ICC’s sanction threat.
Their peers had similar experiences: Milosevic’s peers – notably Karadzic and Mladic – were not
seriously threatened with international prosecution, while Kony’s direct peers were, like him, able to
evade arrest and had similar experiences with the criminal justice system before they were being
threatened with international prosecution. Milosevic and Kony were also clearly risk sensitive, although
it was expressed in different ways. Milosevic tried to decrease the chance of detection by making sure
that no documentary trail remained which could clearly link him to the atrocities taking place, and by
using the Serbian government apparatus to decrease the chance of being apprehended. Kony on the other
hand, showed his risk sensitivity by constantly adapting his tactics and hiding in places that were known
for their inaccessibility and low government control.
At the same time, the social contexts in which Milosevic and Kony committed their crimes were
usually rather lackluster about issuing extralegal sanction threats against committing serious crimes.
This was the case both for the circles in which the men operated and the wider society in which they
lived. The support for Milosevic’s ideological goals, such as the creation of an ethnically pure Greater
Serbia, caused a somewhat perverted morality, which did not disapprove of the ethnic cleansings taking
place in Croatia, Bosnia or Kosovo. With regards to Acholiland, the society in which Kony operated
most of the time, it can be said that the region for the most part does not so much support Kony as it
disapproves of his rival, Museveni. The lack (of force) of the extralegal sanction threats was even more
pronounced in the more direct social context. Kony’s LRA was almost completely subjugated to his rule
and most of the rebels were afraid to challenge him. The same can be said of Milosevic’s political allies,
who were mostly yes-men. Yet, Milosevic did in fact often receive advice that ran counter to his support
for the ethnic cleansing operations in Kosovo, Bosnia, and Croatia. Still, the social context in general
did not issue extralegal sanction threats as firmly as might be expected, sometimes even leading to an
inversion of morality which actually deterred Kony and Milosevic from not committing any (further)
crimes.
While a court that is perceived as legitimate can command a significant pool of support which
can facilitate the acceptance of unfavorable decisions, and moreover can have a restrictive effect on
people’s behavior, the ICTY and ICC, although eventually achieving performance legitimacy, did not
achieve audience legitimacy. Nor did Milosevic and Kony perceive the court that prosecuted them as
legitimate. Of course, it is hardly surprising that courts have a hard time to be perceived as legitimate
by the people they prosecute. However, Tyler’s model of procedural legitimacy points to some important
requirements to be perceived more positively. One of these requirements is that the court cannot be
perceived as discriminatory. It was problematic, then, that Milosevic regularly accused the ICTY of
discriminating against the Serbs and felt that the ICTY was only established by the international
community to once again victimize the Serbian people. Kony, on the other hand, felt like the ICC was
part of Museveni’s strategy to destroy him. The failure of the ICC to prosecute members of the Ugandan
government or the armed forces, gave rise to allegations of partiality, which made Kony feel like the
158
ICC was biased against him. Both in the case of the ICTY and the ICC, these accusations of selective
justice were exacerbated by the lack of an effective, properly funded Outreach programme. Because of
this, the narratives of discrimination and bias were basically left unchallenged.3 Thus, the restrictive
effect the ICTY and ICC could have had on Milosevic and Kony, was largely impeded by a negatively
perceived legitimacy.
The combination of factors described above offers a multi-causal explanation for why the ICTY
and ICC were unable to meaningfully deter Milosevic and Kony from committing any (further) crimes.
Although many hoped that these courts would significantly contribute to the ending of human rights
violations and the bringing of peace, these hopes were soon shown to be false. In the end, as was
explained in the analytical framework, the involvement of the ICTY and ICC was an insufficient
obstacle to decrease, instead of increase Kony’s and Milosevic’s strength of commitment to their goals.
As such, a certain ‘foot-in-the-door’-effect was created, in which only extremely strong obstacles can
make the subject give up its goals. It can be said that the bombing of Serbia proper was such a strong
obstacle, finally forcing Milosevic to surrender. Weaker interventions, like the ICTY and ICC delivered,
only increase their strength of commitment.
Still, one might argue that the involvement of these international legal institutions was better than
nothing. The ICC still focused international attention on the conflict in Northern Uganda and the ICTY
meant that at least some perpetrators were held accountable. Although the ICTY and ICC wellintentioned interventions indeed did deliver at least some positive change, the risk here is that the
involvement of international legal institutions is seen as a panacea for ending the conflict. The ICTY
and ICC gave the international community the feeling that it was at least doing something. At first, these
courts were therefore a substitute for effective (military or diplomatic) intervention. The conflicts in the
former Yugoslavia were only ended after the international community embarked on a path of coercive
diplomacy, threatening with air strikes and a further increase in sanctions if the spoilers to the conflict
did not give in to its demands. The ICC’s involvement in Northern Uganda did increase international
attention for the conflict, although at first this was mostly expressed in the form of increased
humanitarian assistance. As such, the limits of retributive justice – and not only to its preventative effect,
but also with regards to other goals, such as its potential for bringing about reconciliation, establishing
a historical record or individualizing guilt – must be acknowledged.4
3
This was especially so in the case of the ICTY, which in its first years did not have any Outreach programme.
In the case of the ICC, this situation was somewhat better, although it remains to be seen if the Court’s activities,
and most of all its lack of activities against the UPDF, can be properly explained in Northern Uganda. Moreover,
there have been funding problems, which have limited the non-judicial activities of the ICC.
4
Janine Natalya Clark has done important work in this aspect. See, inter alia: Janine Natalya Clark, ‘The Limits
of Retributive Justice: Findings of an Empirical Study in Bosnia and Herzegovina’, Journal of International
Criminal Justice 7:2 (2009) 463-487; Janine Natalya Clark, ‘The ICC, Uganda and the LRA: Re-Framing the
Debate’, African Studies 69:1 (2010) 141-160; Janine Natalya Clark, ‘Peace, Justice and the International
Criminal Court: Limitations and Possibilities’, Journal of International Criminal Justice 9:3 (2011) 521-545.
159
The ICTY’s and ICC’s problems with effectively deterring the commitment of mass atrocities
can to some extent be explained by looking at the problems as they were laid out in the chapters above.
Despite these problems, many still believe in the idea that international criminal justice can contribute
to ending conflicts while they are already taking place – one might point to the ICTY’s and ICC’s
involvement, but also to the called-for referral of the Syrian conflict to the ICC. The statement by
Amnesty International quoted in the introduction – “try asking senior Syrian officials with blood on
their hands or the leaders of groups like ISIS and Jabhat al Nusra if they would feel confident in a dock
at The Hague” – is characteristic of this belief. There are some logical problems with this thinking,
however. Why would anyone in their right mind stop pursuing atrocities after a legal sanction threat if
they have already committed them? How could a referral in the Syrian situation have a deterrent effects
on the likes of Bashar al-Assad? It is highly unlikely that those who are already so far on what Ervin
Staub calls the ‘continuum of destruction’,5 can be dissuaded from committing any further atrocities by
a threat of international legal prosecution. Rather, such a threat would make them want to cling on to
power even more, since this is the only thing that can prevent them from being captured and put in the
docket. And, more often than not, clinging onto power means committing further atrocities. This was
both the case with Milosevic in the former Yugoslavia, Kony in Africa, and now with Assad in Syria.
According to Staub’s theory of the continuum of destruction and the strength of commitmenttheory, such people can only be stopped by a threat powerful enough to disrupt this continuum, forcing
them to give up on their goals. An effective military intervention, or a serious coercive diplomatic effort
might therefore be necessary in such cases to prevent further violence and protect the victims. It is
striking that the realities of ten years of international criminal justice by the ICC seems to have made
Payam Akhavan, who was referred to in the introduction of this piece as one of the ardent supporters of
the preventive effect of international criminal justice, change his mind somewhat. In pieces ranging from
1998 to 2009,6 he regularly expressed faith in the potential of deterrence by the International Criminal
Court, but in one of his more recent articles called ‘The Rise, and Fall, and Rise of International Criminal
Justice’, he argues that it should be realized that international criminal tribunals cannot prevent violence,
at least not on their own.7 In his words, “the ICC […] has been decoupled from more effective measures
to halt ongoing atrocities” and “we [should not] plac[e] a burden on international criminal justice that it
cannot bear, by making it a substitute for, rather than a complement to, preventive action”.8 This
5
Ervin Staub, The Roots of Evil: The Origins of Genocide and Other Group Violence (Cambridge: Cambridge
University Press, 1989) 17-18.
6
He argued most powerfully for this stance in: Payam Akhavan, ‘Justice in the Hague, peace in the former
Yugoslavia?: A Commentary on the United Nations War Crimes Tribunal’, Human Rights Quarterly 20:4 (1998)
737-816; Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’,
The American Journal of International Law 95:1 (2001) 7-31Payam Akhavan, ‘Are International Criminal
Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’, Human Rights
Quarterly 31:3 (2009) 624-654.
7
Payam Akhavan, ‘The Rise, and Fall, and Rise of International Criminal Justice’, Journal of International
Criminal Justice 11:3 (2013) 527-536, 530.
8
Ibid.
160
contribution would like to close with a similar argument. The case studies have shown the complexities
of preventing violence in a conflict situation through a psychological and criminological perspective.
There is little reason to believe, however, that an increase in the capabilities of international criminal
justice, which might solve some of these complexities, will do all that much to increase their deterrence
capability. It is unrealistic to expect that the distant threat of international legal prosecution can deter
militia leaders or government agents from committing serious crimes. An effective disruption of the
continuum of destruction can only be achieved by an effective and powerful intervention, either
militarily or diplomatically.9 The role of international criminal justice can then be played out after the
violence has been halted.
9
The intervention of peacekeepers and the presence of military troops will also increase the chance of suspects
being apprehended. French troops, for example, have recently been playing an important role in the arrest of ICC
suspects in African countries.
161
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