CHRONICLE OF AN ARREST FORETOLD AND A PROCESS FORESHORTENED

ERIC GORDY,PROF

By ERIC GORDY

The spokesman of the Serbian Special Prosecutor for War Crimes, Bruno Vekarić, described the news that seven former RS police special forces officers had been arrested for participation in the genocidal killings in Srebrenica (one of the suspects goes by the charming nickname “Neđo the Butcher”) as indicating that his office has “resolved, I would say, the Srebrenica case for the first time in Serbia”[1]. The statement is partly true: killings related to Srebrenica were prosecuted in Serbia in the “Scorpions” trial, but that case was marked by a strenuous effort to avoid drawing any connection between the perpetrators and the forces (including the Serbian Interior Ministry) that armed, financed, trained and commanded them. This event has been greeted by the expected rhetoric about slow but reachable justice, confronting the legacy of the past, and similar formulations.

 

The case might mark a good moment to ask how states in the region are confronting the past. It looks like they are confronting it the way a driver confronts other cars on the highway: in discrete units, at variable speeds, and with a lot of the characteristics of the whole situation unrecognizable or unreachable. There are episodic encounters with the past, but no overall confrontation with its character.

If we want to take judicial engagement with Srebrenica as an example, we are likely to see convictions against prominent figures like Mladić and Karadžić added to the list of existing convictions, and may see another three or five or seven paramilitaries or former VRS officers charged here and there – but we are not likely to see a big dent made in the list of thousands of perpetrators and accomplices (including 19,473 members of the Drina corpus, and the seven people arrested yesterday who were not military at all) provided in an unpublished annex to the 2004 RS Srebrenica Commission report[2], and less likely still to see a systematic interrogation of ways in which the crimes represented the execution of policies had been developed and supported by states.

The basic reason for this is that there are some lines that prosecutors and courts, if recent experience is any indication, will not cross.

One of them is the involvement of states in crimes committed on the territory of other states. If we take the cases of HVO and Herceg-Bosnia officials before ICTY, an interesting pattern appears. The involvement of Croatia as a sponsoring state is mentioned in the judgements, but no convictions are rendered. The trial chamber verdict in the Prlić et. al. case (IT-04-74,[3]) refers to a joint criminal enterprise coordinated by Franjo Tuđman, Gojko Šušak, and Janko Bobetko – all of whom are no longer living, and hence none of whom can be charged – in addition to the indictees. Other cases in which people were indicted for crimes committed in other states, particularly the Stanišić-Simatović case (IT-03-69) and the Perišić case (IT-04-81, convicted by the trial chamber and reversed on appeal), resulted in poorly reasoned acquittals. An influential political doctrine labels legal critique of the military behaviour of powerful outside intervenors “lawfare” (I described this in another essay[4]), and a brief filed by a group of “lawfare” advocates was probably influential in developing the reasoning used by the ICTY to produce the acquittal on appeal in the Gotovina case (IT-06-90). This is area where the interests of powerful states in the Balkans and powerful states in the world converge. So far domestic courts are reproducing the pattern set at ICTY, and leaving cross-border crimes alone.

Another uncrossed line is the responsibility of people who did not pull triggers. Since failing to convict Slobodan Milošević, ICTY (together with the domestic courts that follow its lead) largely abandoned the project of pursuing political and organizational designers, enablers and planners of crimes. The controversial standard was staked out in the Perišić appeals judgment (IT-04-81,[5]), which struck down the former JNA commander’s conviction for arming and financing forces that committed crimes on the ground that (p.17) “the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators.” Exactly the same language was echoed in the trial judgment in the Stanišić-Simatović case[6] (p. 850). The “specific direction” doctrine has been rejected since both by other tribunals and by other chambers at ICTY, but it points to an unavoidable political fact: the barriers to justice get higher the higher one reaches up the chain of command. The consequence of this is visible in cases we are able to observe now – low-ranking suspects are charged instead of high-ranking ones, and discrete acts are pursued rather than policies.

The power of these uncrossed lines in law means that limitations are imposed on public understanding. We are encouraged to think of “criminals among us,” but not of criminal policies. This tends to impose the conclusion that while it might be necessary to arrest a few individuals, there is no need to interrogate history. On some level this perception might be understood as accounting for the general political response to the recent ICJ decision in Serbia and Croatia’s reciprocal genocide contretemps, which can be summarized as “they said that some of us were victims, and while some of the other folks may have been victims, they decided it wasn’t genocide. So free passes all around.”

Criminal and civil legal cases represent, of course, an inescapably essential part of the process of recording and addressing the past. But just as clearly, there are elements of confrontation that cannot be accomplished by tribunals and courts. These require the engagement of social institutions on all levels, from politics and education to religion and culture.

These institutions also have lines they will not cross.

The first of these lines is the one between guilt and responsibility. Once the discussion goes past direct perpetrators and people who told them what to do, it confronts a whole set of ideas, orientations and conditions that are not crimes, but collectively contribute to constructing and maintaining an atmosphere in which crime is both possible and seen as necessary or normal. In general people cannot be prosecuted for what they thought (or taught), but these things comprise an unavoidable part of understanding how historical events occurred, as well as a potentially uncomfortable part of many people’s personal memories. But the universe of responsibility is broader than the group of people who indulged in acts like falsification or propaganda. Language helps in understanding responsibility, which one theologian defined as “the ability to respond.” If it is understood as an idea with democratic and moral elements, it implies that (all) members of a political community carry an obligation to understand the past, to recognize needs that derive from it, and to address those needs in the future.

The second is the line between criminals and the rest of the society. There is no shortage of people who accepted the invitation to read the Gotovina verdict as saying that Croatia is innocent, or the Stanišić-Simatović verdict as saying that Serbia is innocent. But both Croatia and Serbia are much more than the people from those places who are accused of committing crimes. Both countries include direct and indirect victims of those crimes, innocent people wary of guilt by association (because they served in military forces, for example), people confronted with the consequences of their states’ political reputations, and people whose favourable or unfavourable status derives from conditions created by recent historical events. A relatively small number of convictions or acquittals does not alter these people’s needs for recognition, dialogue, and in some cases, restoration of relationships and rights. These are areas where well respected institutions, especially in education, religion and culture, can and should be engaged in promoting mutual understanding. The condition for them doing this is to think of somebody other than indictees as the carriers of the privilege of representing the society.

If we ask why all these lines have not been crossed, and consequently why the much-publicised “confrontation with the past” has not been accomplished, we may never be able to stop coming up with answers. I would isolate just a two of the possible answers for more consideration.

First, while the universe of criminal suspects can usually be restricted, the universe of accomplices is potentially infinite. At a bare minimum it includes people who held positions of political responsibility while crimes were planned and committed. These people and their parties are now neither excluded from political competition nor out of power. Consequently their interest in the limits of historical dialogue is strong. It is popular to point to Germany as an example of a state that has engaged in a thorough and generally successful interrogation of its past and responsibility related to it. It is less popular to ask why so little happened in this regard in Germany from the end of the International Military Tribunal to the beginning of large-scale trials of Nazi offenders two decades later. The simplest answer might cover a lot of ground: by the late 1960s, most people whose reputations could be damaged by revelations about the past were no longer actively defending them.

Second, the states that are confronted by this challenge are unconsolidated states of recent formation, each of which remains continually open to challenges related to their legitimacy. To a large degree this legitimacy is derived from perceptions of having fought and won just and legal wars. This is why Republika Srpska celebrates its “day of statehood” on 9 January (the date in 1992 when paramilitaries declared its existence) rather than 14 December (the date in 1995 when the Dayton Peace Accords[7] made it a legal entity). And it is why the editor of this publication, Dejan Jović, became the object of a sustained media smear for calling into question the conditions under which the 1991 referendum on independence of Croatia had been conducted. The centrality of this concern is dramatised continually in Croatia, where a newly elected president paid a symbolic first visit to a group of striking war veterans, calling their “war the foundation of Croatia.”[8] The fact that the veterans’ demands[9] relate almost entirely to income guarantees, property rights, and tax benefits serves to underline the degree to which legitimacy is a concrete, rather than a symbolic, interest. While the normative thinkers among us may be inclined to think of the state as a moral project, the state does not tend to think of the state as a moral project. The state is more inclined to think of itself as an enterprise – and depending who is powerful in the state, they may think of it as a very profitable one.

The reasons offered just above might be thought of as alternatives to most frequent move you are likely to see when the partial and halting process of justice is discussed, which is to claim that everything could be done but the process is blocked by “nationalism.” This claim relies on an essentialist understanding of what nationalism is. Nationalism can come into play as a tool to encourage shifts in public opinion for or against some move that is concrete. But it invents nothing and explains nothing. Look more closely, and you will always see that what is at stake are concrete interests.


Eric Gordy is Senior Lecturer at School of Slavonic and East European Studies at University College London. He is the author of “Guilt, Responsibility and Denial: The Past at State in post-Milošević Serbia”, University of Pennsylvania Press, 2013.[10]

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