There are a lot of questions to be considered in the aftermath of the delivery of the ICTY’s last trial verdict. Here are some thoughts on four of them.
The full text of the verdict has not yet been published. When it is, it will probably be somewhere around a thousand pages requiring careful reading. In the meantime it will be necessary to divine what can be divined from the eleven-page summary. Most attention will go to the judges’ reasoning on count 1, for genocide beginning in 1992 in six municipalities. On this count the chamber decided to acquit Mladić, but did convict him of several counts of crimes against humanity. It will be interesting to see their reasoning in detail. According to the summary, they did find on the one hand that “certain perpetrators […] intended to destroy the Bosnian Muslims in those Municipalities as a part of the protected group” but did not agree that “the targeted part constituted a substantial part of the protected group.” So they found intent (which the chamber in Karadžić did not) but introduced a standard of scale (which is drawn from the Genocide Convention, but is new in court decisions).
Writing in Balkan Insight, Jelena Subotić described the acquittal on the first genocide count as „a shame and a missed opportunity.” To the degree that this is the case, it is so because the opportunity that has been missed is the opportunity for the court to offer, from an authoritative position, an interpretation of what the conflict was about, and that the purpose of some of the combatants (VRS and their sponsors in particular), was to forcibly change the population in order to bring it in line with their horrifying ideas. They did not take the opportunity, leaving the ICTY with a bizarre narrative, that there was a war that lasted three years during the course of which one genocide took place toward the end, which did not correspond to the overarching goals of any participant. As Florence Hartmann points out, “no genocide in history happened over five days in summer. Genocide is a process.”
Overall I would tend to agree with these critics: it would have been both desirable and sensible to see a conviction on the first count of genocide. At the same time, having reviewed the evidence in detail, it is not difficult to understand why the judges saw a qualitative difference between the municipalities and Srebrenica. The difference relates not only to the scale but also to the purposiveness of the violence and multiple declarations of genocidal intent. And it probably bears observing (again) that a conviction for crimes against humanity is not at all a cop to minor charge.
Context is important here. There is not a lot of jurisprudence on genocide, and the issue is young. Although the Genocide Convention came into force in 1951, nobody was convicted under it by an international court until 1998, when Jean-Paul Akayesu was sentenced. Aside from the convictions for Srebrenica, international courts have been hesitant to deliver convictions for genocide – the subtext of nearly every verdict seems to be “please do not bring us a lot of genocide cases.” A result of this has been a growing gap between what social scientists consider to be genocidal processes and practices (which is sometimes very broad) and what lawyers consider to be genocide (which is consistently very narrow).
If the problem were only a legal problem, it would be nearly meaningless. The substantive difference between genocide and crimes against humanity is small enough that it is worth asking why it is necessary to have genocide as a legal category at all (personally I am not fond of the concept, as it recapitulates the bigots’ habit of reducing people to their ascribed ethnic identities). But it is not a legal problem; it is a political one. The reason there is insistence on the category of genocide is that creates a status of victimhood that can be transformed into political capital. A basic review of Marx (by way of Bourdieu) tells us that the difference between money and capital is that capital is money that takes on a life of its own. As with any life, we may want to ask ourselves whether it is the life we want.
2. The international character of the conflict
Another point on which we will want to see the full reasoning of the judges relates to the involvement of the Republic of Serbia in the violent establishment of Republika Srpska. While the judges in the Karadžić case explicitly rejected the contention that Serbia participated in the joint criminal enterprise, the Mladić judges did so implicitly, by not naming names (in the summary at least – we have yet to see the full verdict). But they did it with an interesting exception. In discusing Mladić’s culpability for the genocide in Srebrenica, they said: „He was in direct contact with members of the leadership in Serbia and members of the General Staff of the army of the Federal Republic of Yugoslavia to ensure that the military needs of the VRS were met.”
The fact is that the Tribunal has not staked out a clear position on the involvement of neighbouring states in the violence in the violence in Bosnia and Herzegovina. In the cases where they had an opportunity to stake out a clear position, those of Momčilo Perišić and of Jovica Stanišić and Franko Simatović, the effort fell victim to Theodor Meron’s bizarre legal experimentation. There is no recourse in the Perišić case, but there may yet be a resolution in the case of Stanišić and Simatović, which has been sent back for retrial. In the meantime Meron’s Rosemary’s baby of a legal standard has been rejected by every court that has reviewed it.
This leaves a strange anomaly in the Tribunal’s narrative. The only instance in which they have a ruling determining that a neighbouring state intervened in the violence is in the Herceg-Bosna case, where the trial verdict names officials from Croatia as participants in the joint criminal enterprise to establish an ethnically homogeneous entity in Herzegovina (there are similar implications in the Blaškić and Kordić cases). This case is set for its appeal verdict next week, and we will see whether this finding will stand.
A judicial record that shows intervention only by the side that intervened less makes for a problematic historical record. It is a good sign as to why you do not want to leave the business of generating social and historical accounts to lawyers, any more than you want a sociologist or historian defending you in court.
In their closing arguments, Mladić’s defence made an effort to argue that by charging Mladić the prosecution was charging all Serbs. They did this not metaphorically but literally, arguing that:
The Prosecution wants to assert strict liability for everyone who is Serbian and everyone who had any position within legitimate Serb government, civilian and military organs
And seeking to:
remind the public, of which the non-Serbian portion of the public have perhaps already convicted our client in their minds upon reading of the indictment, that the Prosecution’s indictment and policy of collectively blaming all Serbs of being part of a JCE and then blaming General Ratko Mladic for all crimes ever committed by any Serbs, known or unknown, is inappropriate.
Politicians from pro-genocide parties tried a similar approach after the delivery of the verdict. This ranged from the retroactively moderated Serbian president Aleksandar Vučić, who said the day of the delivery of the verdict was “a difficult day,” to outre rodent flinger Boško Obradović and secondhand tobacco dealer Milorad Dodik, to whom Mladić is a “hero.” The syntagm was repeated in international media where people who know better were once again told that “Serbs” think this, “Bosniaks” think this, and all that Balkan Ghostie bla bla bla.
But a funny thing happened on the way to the cross burning. The exotic peoples declined to conform to the stereotype. Except for somewhere between 20 and 30 people who turned up for a support rally in Belgrade. Outside of the wilfully misinformed, a lunatic fringe, and a small coterie of people holding political power, Serbs like everybody else in the world are perfectly well aware of who Ratko Mladić is and what he did. They neither like him nor feel represented by him. The idea that vicious nationalists are authentic representatives of national cultures is an ugly stereotype that has to die.
What do the nationalist authoritarians know and understand about Serbia and Serbian culture? Have they understood the important cultural inventions of Borislav Pekić and Danilo Kiš? They have not. Do they know why Jelena Šantić spent the last years of her life resisting their aggression? They have no clue. Do they understand the inspiration that Aleksa Šantić took from sevdalinka? They thought of that lyricism as their enemy. Did they understand a word or a note that Disciplina Kičme and Boye were trying to tell them? Nisu smeli doživeti tu radost njihovih lepih pesama. Did they know anything of the original contributions of Yugoslav and Serbian theorists to the development of Balkan feminism at a time when the rest of the Communist world marginalised the questions involved? No, they made sexual violence a part of military strategy. Do they know who Ksenija Atanasijević was? They never met an educated person they did not want to liquidate.
Their understanding of Serbs is drawn from an unctuous melange of the mediocrities who supported them and Ljotić-era myths. The caricature that has been produced out of it has, sadly, come to be equated with a „Serbian perspective“ among similarly clueless internationals. Their power over media and cultural institutions has meant that this perverse mythomaniacal parody of an actually existing culture is promoted everywhere. To blame their crimes on the Serbs that they imagine but do not know is like blaming the murders committed by the serial killer David Berkowitz on the „Sam“ who existed in his head.
These people have fuck all to do with Serbs, aside from the fact that they have been holding them hostage for the last 27 years. They do not like Serbs, they do not treat them well, and they do not respect them.
4. Justice and Closure
Everybody who has observed the ICTY has had moments in which they have been critical, sometimes very critical, of its work. But in this case, something has to be said. Sometimes the Tribunal does some things right. This trial was done right. It was a well organised trial, with minor disruption, good quality of evidence and argument, and ample opportunity for the presentation of a comprehensive defence. The verdict was, if not satisfying to everybody, understandable. And the life sentence given to the defendant was consistent with the overwhelming character of the evidence and the obvious gravity of the crimes. Although there may be reason to be disappointed with the acquittal on the first genocide count, the maximum sentence seems to have compensated for this, and there has not been the level of complaint that was heard after the delivery of the Karadžić verdict. It is possible to say that justice (of an imperfect kind) has been done.
The reason this does not bring closure to the experience is that justice does not begin and end with putting a convict in prison. The consequences of the crimes that were committed still dictate a large part of the daily experience of many people in the region. The multiple efforts to conceal evidence of crimes mean that many people’s fates remain unknown. Years of perpetrator-based justice that involved communication with state authorities and neglect of victims mean that needs arising from the violence are still unmet. The absence of meaningful political change means that power is still held by people soaked in complicity. The lack of candour about facts and public engagement means that myth and ideology have planted their butts on the seats that should be occupied by history, dialogue, and understanding.
For years politicians believed that courts would do the cultural and political and spiritual work that had to be done instead of them. They cannot and will not. The last charged suspect has now been sentenced, and no healing will come to any of these societies until attention is redirected to uncovering facts, to repairing damage done to people, to open dialogue unpoisoned by the ideologues, and to mutual recognition. Sad svi na svoja radna mesta.