This week’s predictions: Ko te Karadžić nek ti piše pjesme

On Thursday the verdict will be delivered in one of ICTY’s last major cases, the one against Radovan Karadžić. You all know who he is and what he did, so no need to go into the details here: if you want to refresh your memory, here is the final amended version of the indictment. It is fairly easy to make a prediction that has been made by everybody else as well, and that is that Karadžić will be convicted. No surprise there – the evidence is overwhelming and his defence was weak (a fact that is not the fault of Karadžić’s legal counsellor Peter Robinson, who has to be recognised for doing a monumental job in assuring a fair trial despite an unreliable indictee who insisted on representing himself and a series of witnesses who were largely unhelpful).

But of course the question that remains open is what Karadžić will be convicted of. The most intense attention will be directed to the most serious charges, where Karadžić is accused of genocide. Count 2 of the indictment accuses him of responsibility for the genocide in Srebrenica, and here it is reasonable to expect a conviction, for three reasons:

• 1) There already exists a judicial record establishing that genocide was committed by VRS in Srebrenica, so judges are not being asked to break new ground;
• 2) Karadžić occupied a position of political authority that gave him ultimate responsibility for the conduct of armed forces under his command (in his defence Karadžić argued that he did not exercise effective control over the military, which was dominated by his political rival Mladić, but to my eye the evidence does not look strong enough to demonstrate, like it did in the acquittal of former Serbian president-manque Milan Milutinović, that he did not in fact exercise political power);
• 3) A wide variety of RS institutions, from the “state” assembly to the interior ministry and local police forces, left a documentary record that viewed in its entirety probably provides sufficient evidence of genocidal intent at the political level. The fact that much of this evidence has become publicly available may end up being one of the greatest legacies of the prosecution researchers at ICTY (to the degree that transcripts of political debates indicate that genocidal intent was not universally shared by all “state” officials, they clearly show Karadžić sharing the intent).

So on these grounds it looks probable that the Tribunal will find that Karadžić’s responsibility for the Srebrenica genocide has been demonstrated, and that he will be convicted on Count 2. But it is harder to make a confident prediction about Count 1, where Karadžić is accused of committing genocide between March and December 1992 in seven localities: Bratunac, Foča, Ključ, Prijedor, Sanski Most, Vlasenica and Zvornik (in an earlier version of the indictment the charges also included genocide in Kotor Varoš, Brčko, and Višegrad, but these were dropped in response to a trial chamber order to reduce the scope of the indictment). Whatever the trial chamber does find on Count 1, the decision will be read carefully because it both offers a guide to what will eventually be decided in the case of Ratko Mladić, and because either way, the judges’ decision on Count 1 will be interpreted as going a long way to establishing the ICTY’s stance on the character of the 1992-1995 Bosnian conflict. The eventual verdict will most likely also be interpreted not as a conclusion of what the evidence demonstrated, but as an indication of what the judges were willing to do politically at a given moment.

Let’s make this a bit clearer: if the trial chamber finds Karadžić guilty on Count 1, this will be interpreted as indicating that the aims and purposes themselves of RS involved genocide. It will be understood as affirmation by people who have been arguing for years that the violence in Bosnia-Hercegovina was not a confrontation between a set of armed forces but a campaign deliberately designed to create nationally homogeneous territories by changing the structure of the population through violence. Many people in RS and Serbia will interpret a conviction on Count 1 as a condemnation of the war aims of Serbia and its clients in RS, and as a major challenge to the legitimacy of RS, where the current leadership lives in fear of being labelled an entity created through genocide. Either way, a guilty verdict on Count 1 will be taken as a major intervention by the judges into the historical understanding of the violence in Bosnia-Hercegovina.

A not guilty verdict on Count 1 would also constitute a major intervention into history, but one more in line with the overall direction of the tribunal in its recent very controversial cases involving Bosnia-Hercegovina. In that version of events one incident of genocide occurred toward the end of a conflict that lasted for three and a half years. And for the rest, there was a confrontation between two legitimate armed forces with legitimate aims. Crimes were committed but were not the result of policy or command. This is the general narrative constructed by the appeals chamber in the Perišić case,  which determined that “the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war” (Perišić appeal verdict, para 53), and that “VRS was participating in lawful combat activities and was not a purely criminal organisation” (Perišić appeal verdict, para 57). The fact that crimes were committed along the way, in this telling of the story, involves freestanding individual facts rather than goals, policies or institutions. The narrative is further elaborated in the Stanišić-Simatović trial chamber verdict (Part 1 here, Part 2 here),  where it is found that the role of outside actors who trained, financed and armed the forces that committed crimes merely provided “general assistance which could be used for both lawful and unlawful activities” (Stanišić-Simatović trial chamber verdict, para 1264, 2360), the purpose of which “was limited to establishing and maintaining Serb control over large areas of Croatia and Bosnia-Herzegovina” (Stanišić-Simatović verdict, para 2326; reformulated in various ways in paras 2330, 2332, 2333, 2334, 2345, 2360). In this context, if somebody says something like “we’ll exterminate them completely,” this is “too vague to be construed as support for the allegation that [the person] shared the intent to further the alleged common criminal purpose” (Stanišić-Simatović trial chamber verdict, para 2309).

It might seem more probable that ICTY would continue down the path it has taken and deliver a not guilty verdict on Count 1. But let me go out on a limb here and suggest why they might not: the „legitimate war with some nasty events along the way“ narrative is reconstructed from the verdicts in two 2013 cases that radically narrowed the standards for establishing criminal responsibility. These might be thought of as precedents, but a decision is only a precedent if another court uses it. This standard has been rejected by every court that has reviewed it, including three times by ICTY itself (in the Šainović et al and Popović et al cases, and then again in December in the Stanišić-Simatović appeal). If these rulings can be thought of as a judgment not just on the ill-conceived and short-lived „specific direction“ standard, but as a sign of a broader approach to crime (at least when the perpetrator is a domestic one whose activity does not cross borders), then it is not impossible that the Tribunal’s standards could be returning to their pre-2013 levels. The limiting factor on this prediction is a big one, though: one thing we know is that in general, judges are pretty loath to label something as genocide if it has not already been labelled that way by another judge.

Will any of this matter? In the short term, probably not much – people in different ethnopolitical camps will interpret any favourable verdict as a score for justice, and any unfavourable verdict as a sign that ICTY is biased. Down RS way, Milorad Dodik made the preemptive gesture of naming a new student dormitory after Karadžić (what student would want to sleep in such a dormitory?). But in the long term – a finding that a court makes is bound to have more influence than a finding it does not make. Eventually both the supporters and critics are going to be compelled quit the roundabout strategy of talking about bias and engage with the content of the verdicts themsleves.

 

Then next week there will be a verdict in another case, the one against state security agent, paramilitary mascot and TV performer Vojislav Šešelj. No major legal or empirical issues are at stake in this case, and it is principally notable for the grotesque theatrics that have accompanied it, in which an insane man plays a swearier and more bloated Jeanne D’Arc and an incompetent man plays a judge. By deciding last week that the accused did not need to be required to show up to hear the verdict, the Tribunal fairly invited everyone to make a prediction that the verdict would not result in a prison sentence. Hold your breaths for the answer to the uninteresting question of whether this means an acquittal or sentencing to time served.

 

So these are my predictions. Like any predictions, they will turn out to be either right or wrong, and we will all know by the end of next week. Then, of course, remember that these are cases in the trial phase, which means that whoever loses will have the opportunity to appeal, which they can be expected to use. So the story is going to go on.

Note: Here’s Marko Milanović making the opposite prediction. The reason we are making different predictions is that we are making different assumptions. He is assuming that judges will do what they have done before (usually a pretty safe assumption in any legal environment). I am assuming that the 2013 verdicts are reflective of a larger experiment in restricting legal oversight, which has since been rejected. I don’t know which one of us is right.

Tales of the unexpected: Moving the goalposts with Ivica-love

A child’s watch. A child’s jumper. A bullet.

People should know, and so other people are there to help them, and so they will. On 28 March 1999, members of the “Scorpions,” a reserve police unit, paid an uninvited visit to the home of the Bogujevci family in Podujevo. By the time the visit ended a few minutes later, fourteen members of the Bogujevci family, the Lugaliju family and the Duriqi family were murdered by gunshots. The visit by the “Scorpions” was not part of a battle or a fight against terrorism. At the ages of two and four respectively, Albion Duriqi and Mimoza Duriqi had not had the chance to join any organisations, paramilitary or otherwise.  Shehide Bogujevci, at the age of 67, and Hamdi Duriqi, at the age of 72, were past the age for active military service.

Some of the five children who survived the massacre participated in collecting and giving evidence. Fatos, Saranda and Jehona Bogujevci gave evidence at the trials of Vlastimir Djordjević (convicted and awaiting appeal) at ICTY and of Saša Cvjetan (convicted and sentenced in a domestic court in Serbia) and Dejan Demirović (turned protected witness). There were a few more trials of members of the “Scorpions” unit, and the surviving children gave testimony at all of them. Other than Vlastimir Djordjević, none of the people who supplied, financed and commanded the “Scorpions” have been charged.

This is probably about as far as courts and prosecutions are likely to go. The limits on criminal justice are, in a word, overdetermined. But resolved that the people who ought to know about the crime should know, the surviving family members put together an exhibition, “Bogujevci – visual history,” (the PDF catalog) which made its way this week to the Belgrade Cultural Centre. The exhibit is disarmingly simple. A visitor enters and sees first the living room of the family home, looking very much like typical family living rooms across the region. The next room gives details of the killings through photos and lists of the victims and recollections of the survivors. Visitors then move on to the hospital room where the survivors were mistreated, and finally to a room showing documentation of the trials. The surviving family members explain the exhibition in terms of the need of people to know the truth. The director of the Cultural Centre explains that she was willing to (fight to) host it so that “as a society we can show that we are ready for dialogue.”

Is it necessary to say that not everybody in Belgrade was enthusiastic about the prospect? The responses ahead of the exhibition ranged from the loopy papers like the extreme-right Pravda (“Albanian provocation in the centre of Belgrade”)  and Kurir (“Albanian propaganda: Artists from Kosovo make an exhibition in the middle of Belgrade!”), to the finger-yellowing tabloid Telegraf (“Scandal: An Albanian exhibition right in Knez Mihailova”) and the whatever-the-fuck-they-are Novosti (“Albanian propaganda right on Knez Mihailova”).  So if you peek at the range from subconscious-official to hyper-official media, you could get the feeling either that there is a broadly shared consensus in opposition to information out there or that under conditions of austerity they are all sharing the same headline writer. The fact that on the evening of the opening only a few dozen members of the Horst Wessel community choir showed up to shout insults at the attendees might be taken to suggest that the latter is the case.

But there was a surprise attendee. Prime minister Ivica Dačić came to the opening, let the members of the Bogujevci family take him on a tour, gave a statement affirming the importance of the exhibition, and expressed his sympathy with the victims of violence. That would be the same Ivica Dačić who was the principal spokesman for the Milošević regime at the time that the massacre took place. Throughout the evening and into the morning, there were expressions of Ivica-love from the most unexpected quarters. He was praised for courage, for showing his readiness for reconciliation, and for placing officialdom on the side of open exchange.

And it’s a bit hard to disagree, all that is great, especially in comparison to what could have happened, and may very well have happened not much earlier. Maybe the gesture was transformative and meaningful enough, and we can agree with Woody Allen (did I just say that?) that 80% of life is showing up.

Or maybe not. Let’s have a look at what Ivica Dačić actually said.  First he gave a statement minimizing the number of perpetrators and their sponsors, saying:

“They asked me when I came here about an apology, my answer is that everyone who is guilty has been convicted and that I would like all of the guilty people for all of the crimes from all sides to be convicted. That is much more meaningful than an apology. I offer my sympathies to the families of the victims of crimes; for the sake of reconciliation and the continuation of our shared life that is the way it should be in all of the major parts of the former Yugoslavia.”

So, he makes it a little bit interesting. In a few sentences he tell us 1) that anybody who has not already been convicted is not guilty, 2) that guilt for crimes depends on reciprocal guilt for crimes from other formerly warring parties, and 3) that states not involved in the conflict of which the massacre that is described in the exhibition was a part have some obligation to the ones that were involved. The narrowing of responsibility brings with it a broadening, and gle čudo both of them are transparently self-interested.

But that’s not all that Ivica Dačić said. He continued:

“It would be a shame if an exhibition like this were taken to imply that we are talking about our crimes or their crimes, because victims are victims. The guilty people did not do what they did in the name of Serbia, nor did anyone authorise them to do it.”

This is a bit interesting because Dačić knows better. He knows, for example, that the trial chamber judgment in the Djordjević case explicitly addresses the authority given by the Interior Ministry to the “Scorpions.” He knows that Interior Ministry personnel involved with similar crimes are still employed in the Interior Ministry.  He knows that the “Scorpions” were a reserve police unit under the jurisdiction of the Interior Ministry.

But yes, I can anticipate you saying, sure, Interior Ministry this, Interior Ministry that. Dačić was there not as a technical official of government, but in his symbolic role as Prime Minister. Perhaps if the Prime Minister wants answers, he could share some of his thoughts with the Minister of the Interior. I think they might know one another.

Apologies for being a little contrarian here, it’s not really in my nature. It’s great that Ivica was thoughtful enough to roll himself into the gallery. He took one small step for humankind. And along the way placed one little kick in the butt of justice.

Today’s dictionary of ideology: “Lawfare”

So where do professional goals and practices in international law intersect with efforts to provide legal protection to victims of conflict-related violence? You might think it is a silly question: don’t all practitioners in international law share the goal of providing the protection of international law? The ultraquick answer is no, they do not all have the same orientations, the same sympathies, or the same employers. Some of them want to establish and expand legal protection and some want to limit it.

Since these two groups are fundamentally opposed in terms of what they are trying to achieve, it is not too surprising that they should frequently try to discredit one another. It’s not much of a challenge to discredit projects that have the mission of exempting violence from legal oversight, of course. But what about the other side? Well, what if you were given the opportunity to argue that people interested in protecting civilians while you are fighting are strategic tools of the enemy? The opportunity has been provided, and it traces its origins to the effort of right-wingers to redefine the world after the 9/11 terrorist attack in New York.

Enter one very modern major-general (a brigadier-general actually, but it doesn’t scan). Speaking at Harvard University in the aftermath of the attack in 2001, Charles Dunlap (he was a colonel then), asked:

Is warfare turning into lawfare? In other words, is international law undercutting the ability of the US to conduct effective military interventions? Is it becoming a vehicle to exploit American values in ways that actually increase the risk to civilians? In short, is law becoming more of the problem in modern war instead of part of the solution?

Funny I should ask, General Dunlap answers himself, before going on to quote approvingly two people who agree with his contention, to the effect that

…a “new” kind of international law is emerging that is “profoundly undemocratic at its core” and “has the potential to undermine American leadership in the post-Cold War global system” ….”If the trends of international law are allowed to mature into binding rules,” they state, “international law may become one of the most potent weapons ever deployed against the United States.”

He defines this tendency as “lawfare” and offers a definition:

Lawfare describes a method of warfare where law is used as a means of realizing a military objective.

And Dunlap identifies non-governmental advocates of international law as the prime perpetrators. He has some more words about them too:

…Americans are inclined to be wary of those NGOs who purport to speak – literally – for the “world” on political issues, including LOAC [law on armed conflict]. Too often NGO positions look like political agendas. With respect to LOAC, it must always be kept in mind that NGOs are not political entities equivalent to sovereign nations; rather, they are no more than self-selected, idiosyncratic interest groups that are not accountable to any ballot box. This perspective is sometimes ignored, to the detriment of LOAC development and interpretation.

Consequently (?), Dunlap tells us, “there is an undeniable element of anti-Americanism in international law as it is developing today.” The danger can come from the application of law to violations, or it can come simply from people knowing about violations, as the good general instructs us:

The velocity of today’s communications capabilities presents real challenges to democracies as well as to those governments that, if not truly democratic, nevertheless depend upon support from constituencies that have access to globalized information sources. When television airs unfiltered, near real-time footage of what appear to be LOAC violations, complications result.

Or to put it another way,

The traditional US approach to accomplishing victory – and the one LOAC endorses – focuses on the military element and seeks to diminish the enemy’s armed strength. America’s challengers focus on the people element and seek to diminish the strength of their support for the military effort.

Now, General Dunlap wanted to defend some things in labeling the legal critique of military activity as “lawfare.” On a general level, he wanted to defend targeting civilian objects. On a level more specific than that, he wanted to defend the bombing by NATO of the Radio-Television Serbia headquarters in Belgrade:

Apparently relying on evidence that indicated that RTS broadcasts whipped up ethnic hatreds for years, Air Commodore David Wilby, a NATO spokesman, insisted, “Serb radio and TV is an instrument of propaganda and repression … It is … a legitimate target in this campaign.” His statement is consistent with US legal thinking. [ellipses in original]

He pointed a finger at NGOs as a collective (and Human Rights Watch in particular) as carrying out interest-damaging “lawfare” by criticizing the attack, and of course conveniently overlooked that the attack had no effect on either propaganda or military communication, and that the 16 people who were killed in the attack were technical employees of the television who had no control over editorial or any other policy. The concurrently developing doctrine of (enemy!) force protection enters into Dunlap’s calculation as well, since he contends that large numbers of opposing soldiers were spared at the cost of “small, albeit regrettable, numbers of civilian casualties.”

A couple of quick points about the implications of this fascinating “lawfare” doctrine:

1. Lawfare is conceived as an enemy strategy. That is to say that the reason the term is invented is so that it can be invoked against advocates of law in order to associate them with military opponents. Sometimes, of course, advocates of law might be associated with military opponents. But the global deployment of the term, in conjunction with Dunlap’s sweeping statements about the nature and orientation of NGOs, does not suggest a strong willingness to make distinctions.
2. Lawfare occurs in “asymmetrical” conflict, in which one party is smaller and less well armed than the other. For Michael Schmitt of the US Naval War College, this means that the “disadvantaged party has an incentive to blur the distinction between its forces and the civilian population in the hope that this will deter the other side from attack.” This worries Laurie Blank who points to “the great fluidity between hostile persons and innocent civilians,” but if there is fluidity the “lawfare” analysts seem to have a consensus about the direction of the flow: it goes from innocence to hostility and consequently expands the pool of legitimate targets.
3. Contesting lawfare requires the cooperation of (people in) legal institutions. On the one hand this means lawyers involved with military planning and target selection to try to prevent violations occurring (this is a good thing), but on the other hand it means reducing risk by opposing international courts and tribunals, and if their founding and operation cannot be prevented, limiting their oversight.

Going back to General Dunlap again, he tells us something that has been represented in the pattern of responses we have been able to observe in the debate since the ICTY initiated its series of exonerations of high-ranking suspects last November:

Too often it seems that civilian lawyers and/or humanitarian actors suffer from an insufficient understanding of the military consequences of their legal positions. This can lead to situations that serve to make the law an object of disdain for many in uniform.

But in the immediate post-9/11 environment, our general was optimistic (about the “many in uniform,” that is). As he put it:

Considering Americans’ willingness to sacrifice their own legal protections, they are unlikely to be overly demanding about the supposed legal rights of foreign belligerents.

I am pretty sure that Dunlap’s essay was never translated, but I wonder whether “supposed” would have been translated as “tobože”?

In a later reflection on coining the term, General Dunlap sniffed that “the term was always intended to be ideologically neutral.” But it is fairly clear that it was not. As the debate developed, the discourse on “lawfare” came to be used for a wide variety of purposes. Mostly it was used for the intended purpose, which was to discredit criticism of the techniques and particularly the targeting used in military operations like the ones in Iraq and Afghanistan. But another was to provide a justification for the targeting of civilian objects more generally. When a concrete instance that could have led to legal charges emerged, it was used more specifically – for example by law professor (and former State Department official) Laurie Blank, who excoriated the 2009 report by Richard Goldstone on violations of the laws of war in Gaza. Professor Blank borrowed Dunlap’s argument that the presence of civilians in an area of military activity transform them into legitimate targets (so residential buildings, cultural sites and religious buildings are fair game), but also dismissed Goldstone’s report more broadly as an example of … you guessed it, “lawfare”!

There is a lot that is fairly fascinating about the whole “lawfare” discourse, and it certainly speaks to me as a lover of neologisms and portmanteaus in particular. But aside from the fairly obvious inference that everyone will make that it represents an effort to delegitimate fundamentally legitimate activity by way of verbal disqualification (nothing new there, that’s what ideology does), I would emphasize two things: 1) it shows that people in the military establishment care what people think, which is actually kind of awesome, and 2) it shows that they put a lot of energy into stopping them from thinking it, which is actually kind of creepy.

By now the canny reader will be wondering, this was a nice little journey through the mind of a portion of the military-legal establishment, but what is it doing in a blog about Balkan politics and academics? It is because some interesting relationships emerge between the “lawfare” discourse and the reasoning used in the latest generation of ICTY verdicts that have been the object of so much controversy since the first of them was handed down in November, even more so since one of the judges, Frederik Harhoff, circulated a letter that became public raising his concerns about changes in the way that evidence is evaluated and the possible influence of (and on) the ICTY’s presiding judge.

There are a couple of places where the language of “lawfare,” even though it is not explicitly invoked, made its way into the reasoning of judicial majorities, one of them indirectly and one of them fairly directly.

In February, the Perišić appeals chamber judgement found that “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” – a finding echoed by the trial chamber in the Stanišić-Simatović case, which “recalls the Appeals Chamber’s holding that in most cases, 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 the crimes of the principal perpetrators.” The finding is consistent with the lawfarists’ intent on protecting commanders and policymakers as far as possible from accountability for the consequences of their activity, and to limit liability to cases where there is an explicit intention to commit crimes (as opposed to failure to assure that they will not be committed, or knowledge of the likelihood that crime is a probable result). What it appears to require is a presumption that all war aims be regarded as legal – calling them into question is lawfaring.

Maybe more interesting is the reasoning of the appeals chamber in the Oluja case. A group of military lawyers filed a “friend of the court” brief that concentrated on the development of a standard to distinguish legal from illegal targets. The appeals chamber decided not to admit the brief as the association of the signers with one of the parties to the case disqualified them as “friends of the court,” but it is clear to any reader that the majority decision adopted much of the reasoning used in the brief.

The brief argued that imposing concrete limits on shelling targets “will subject military commanders to a standard of care that is impossible to satisfy and operationally untenable.”

What makes the standard impossible is those perfidious civilians, or as the amici wannabes put it, “Amici fear that adoption of an unrealistic operational standard will, in future conflicts similar to the one before the court, result in noncompliance with IHL balancing standards which may ultimately increase the risk of casualties among the civilian population by incentivizing efforts to immunize lawful objects of attack by co-mingling them with the civilian population and requiring commanders to comply with an impossible standard.”

Otherwise “the commander should benefit from the presumption that his orders and actions fully complied with obligations established by international humanitarian law.” This would serve the purpose of “protect(ing) commanders from unjustified criminal responsibility based on orders resulting from necessarily hasty preparation.”

The first of those arguments resembles quite closely the argument justifying civilian targets in Gaza that (look higher up on the page) had been offered by “lawfare” advocate Leslie Blank – who was, coincidentally, the first signer of the brief.

Let’s put this into a bit of context. What is being played out at ICTY is not a competition over what nationality the judges like the least (as a lot of domestic right-wingers across the region have liked to argue), and it is probably not a sign of direct pressure or lobbying (as Judge Harhoff implied in his letter). It is a competition between rival visions of how legal regulation relates to military activities and the policies, accompanied by a consciousness of what an outcome in favour of the capacity would imply. For now it is a competition that states and militaries are winning, and victims are losing.

He’ll Hoff and he’ll Poff and he’ll blow your court down

Well, this has been an interesting week! After the pretty surprising not guilty verdict in the Stanišić and Simatović trial, a bunch of media were interested in explanations of how it was possible for the Tribunal to find (like it did in the Perišić case) that creating, training, arming, financing, housing, providing personnel and managing covert communication for paramilitary forces that commit crimes does not constitute a connection to the crimes. I was one of the people who offered responses, but there were many others as well, including Iva Vukusić, Srđa Popović, Saša Ilić, Sandra Orlović … there was a lot of critical reaction, I could go on.
There was a little bit of a counterreaction to the critical analyses of the verdict. Stanišić and Simatović’s lawyers published a piece arguing that criticism of the verdict amounted to undermining the right of the accused to a fair trial. A former human rights lawyer tied criticism by human rights activists (and people who sympathise with them) to a feeling of jilted love when verdicts failed to go their way, and claimed that ICTY’s narrowing standards of evidence were in fact nothing new. But the really fun part came from people who picked up on the point that there was a community of interest between judges who adopt restrictive standards of responsibility and states desiring a free hand in shelling stuff and using proxy forces. They decided that pointing out a relation between law and policy is “conspiracy theory,” and decided that this was a good way to defend the ethereal purity of the legal profession by way of terminological dismissal. There’s not much point in making a denial once someone has called you a conspiracy theorist (Your denial is just a sign that you are part of the conspiracy! And you would deny it, wouldn’t you?), but maybe it is at least worth pointing out that the etymology of the word conspiracy (let’s do it loosely as “breathing the same air”) might be used to suggest that what we are talking about when we talk about this disagreement is quite possibly in large part a conflict of approaches and worldviews, and maybe of professions as well.
The professions bit could possibly be the most interesting. As many people have been arguing over the years, when history-defining grievances and crimes are at stake, it is not entirely reasonable to expect legal institutions and procedures – even, if we want to go hypothetical, very good ones – to bring justice, peace, understanding and mutual recognition. This is in a greater measure the job of politics and culture, and one of the great failures of the post-2000 period is the way that politics and culture in large measure ran away from the table in fear, hoping that ICTY would do the job of establishing historical truth and encouraging dialogue instead of them. That was never going to happen even under the best conditions, but with worse conditions in place a lot of people are confronted with a lot of painfully open questions.
There is perhaps another interesting dimension to the conflict between the professions. Lawyers and researchers are both in weird and incestuous communities that trace their origins to the priesthood. Probably they descend from different parts of the priesthood, though. Lawyers come out of the tradition of priests who intercede between man and God, and their practice is founded on affirming their special relationship to ultimate authority and declaring in the interest of the people they represent, “I am right.” Researchers come out of the tradition of priests who try to elaborate and make sensible the mysteries of the world, and their practice is founded on making information available and excitedly shouting “Isn’t this interesting?” A lot of differences derive from these distinct approaches, but maybe the most important difference here is that the two professions do not share the same tendency to defend one another and close ranks.

As it turned out, the people who rushed to defend the sanctity of the lawyers from the people they thought were conspiring to suggest a conspiracy kind of jumped the gun, because eventually the greatest scandal would be produced not by the outsiders who were analysing them but from within their own ranks (darn the priesthood and its intrigues anyway!). On Thursday Danish media published a letter that an ICTY judge, Frederik Harhoff, had sent “privately” to 56 of his nearest and dearest friends. Was it an inappropriate leak of an individual’s private thoughts? Let’s say that when a senior international official sends something around to a large number of people, he either intends for it to become public or is very bad at calculating probability, and although Frederik Harhoff is a professor of law and not mathematics, there is a nonrandom chance that he understands something about probability.
Everybody who follows these topics has already seen the letter (if not, here it is in Danish, English and Naški) so there is not any need to go into too much detail on its contents. In sum it complains about the shifting orientation of the Tribunal to the question of the responsibility of high ranking indictees. accuses presiding judge Teodor Meron of putting undue pressure on his colleagues, raises the question of whether the situation is the result of political pressure, and expresses worry about whether the practice of ICTY is consistent with professional ethics.
Does the letter prove anything? No doubt it offers evidence that at least one senior judge lacks confidence in the leadership of the Tribunal and has some serious doubts and a few suspicions. It does not provide evidence that the suspicions are grounded in more than coincidence, and Harhoff does not claim to have evidence of that. So in that sense observers are largely in the same situation they were in before the letter was released: we do not know about lobbying or other types of pressure, and if there are people who do know they are (for perfectly legitimate reasons) not saying. So if there really are any conspiracy theorists out there, this is not the smoking gun they wanted to find. For my part I don’t care for conspiracies and am inclined to think that if there is influence it does not come from crude strongarming but from the existence of a group of people who have goals, values and orientations to their profession in common.
The letter does give more concrete confirmation of something that we knew before pretty much only from gossip. It confirms the existence of a meaningful (but we do not know how large) level of discomfort among people inside the institution with the direction in which it is headed, the legacy it is likely to leave, and the leadership it has. That is to say, it demonstrates that there are people inside the Tribunal who think what a lot of observers outside think. The fact that it comes from a senior judge who is not known as a live wire gives it a bit of credibility, though its not entirely temperate tone maybe makes it a bit of a wash.

Unsurprisingly the news was greeted with high fascination. The SENSE news agency described it as a “bombshell.” The former OTP spokesperson Florence Hartmann called for an investigation of the issue and raised the possibility of verdicts being revised. Marlise Simons reported in the New York Times of a movement afoot among judges to replace Meron as the presiding judge when his term comes up in the fall.
On a side note, there has also been a bunch of chazzerai about anti-Semitism that I am not meshuggeneh enough to touch.
Is it a bombshell, a pretext for retrials, or the catalyst for a judicial revolt? Time will tell, but a good measure of scepticism is always in order. I am inclined to think it is both a little bit less and a little bit more than that.
First, it is a sign that the crisis of confidence in ICTY has spread from outside the institution to inside. The people who dismiss critics as a bunch of wild-eyed justice-obsessed hippie sans-culotte nonlawyers intruding into the comfortable sanctum really may want to start paying attention.
But possibly more to the point, the whole inside-baseball character of the dispute and the recurrent efforts to limit discussion tell us once again that the putative clients of the Tribunal are not at the centre of anybody’s concern. And it tells us again that if societies genuinely need the work of justice to be done, they have to cast their net broader than the courts.

Celebrate, inflame, soothe? Reading reactions to the Gotovina verdict

By now there will not be many people who do not know that the decision of the ICTY appeals chamber to release Ante Gotovina and Mladen Markač inspired a lot of passionate responses. We have not heard about those responses in too much detail because pretty much everybody who responded did so in exactly the way that could have been predicted before the event. There was no statement from a public figure that would have caused you to raise an eyebrow and say, “this person associated with promoting the regimes of the 1990s has really shocked me with extraordinary intelligence, depth and sensitivity!” or “this person representing a political party heavily engaged with paramilitary activity and propagating ethnic hatred has emerged as a paragon of understanding and caring.” But then you didn’t expect that.

What we did get was fairly telling, though, to the degree that responses to events allow us to generate a picture of public opinion and sentiment, and mark a moment in the development of ways in which people understand the recent past and perceive one another. It might be possible to say that this moment is an important one because it includes a generation of folks who do not have direct experience or memory of the period in question, but who were largely educated with some fascinating and self-serving versions of it.

The typology of responses presented below can hardly be taken as exhaustive. More categories could certainly be added, but I have tried to keep it short for the sake of readability, and I think what is down here accounts for most of what is out there. You could think of it as a way of using public readings of the past to get an overview of what people expect and think in the present. I’ve divided the responses into three general types with three subtypes of each.

Celebratory displays

Triumphalism and ethnoeroticism: There was so much of this and it was so dominant that it is hardly worth describing in detail. So let’s do it with a picture, from the moment when the released defendants’ plane landed and the traffic controllers told them over the radio, “Our dear generals! The Croatian Air Traffic Control Authority is proud to greet you and wish you welcome into the Croatian airspace, for which you fought and sacrificed yourselves. From the bottom of our hearts, thank you for that.” Not to be outdone by sacrifices for air, the airport firetrucks assumed a pose that would have done a pornographic film director proud (naturally we needed the salacious backstory as well).

New institutionalism: The ICTY, dismissed as a political institution directed against [insert nationality here] until about 9:30 AM on Friday, was magically transformed into the cleanser of historical legacies. Hindsighted over-shoulder backslapping aside, this was not the expected outcome. While many domestic politicians and parapoliticians leapt at the chance to make the point that all responsibility had been erased, it got a surprisingly strong endorsement from Ian Traynor in the Guardian (of all papers!), who found that the Tudjman regime “is exonerated.” Predictably the discussions quickly shifted from an assertion of wounded innocence in 1995 to an assertion of wounded innocence across the boundaries of time and space. A look at the dispiriting comments on Traynor’s article shows enthused readers opining on whose crimes were the worst in the whole 1990s war period, how many people were killed at Jasenovac (stop the presses! not as many as some people wanted!), the ethnic coordinates of Communism, and the injustices of the Austro-Hungarian empire. The discussion offers a reminder about instrumental interpretation and the very popular refusal to take history seriously, as if this was needed. And it reminds us that views of whether institutions are good or bad all too frequently put a cui in front of the bono.

Finding the most opportune posture: Released defendant Mladen Markač found his moment, he returned to Croatia and the next day was at the head of a parade commemorating the destruction of Vukovar. Ivan Čermak, acquitted by the Tribunal in the first instance because it could not be proved that his military rank brought him a job to go with his uniform, was out and about to seek an advantage too. There were some other people who also saw their chance to make hay while the national euphoria shined – most impressive of all of them was the coach of the national football team, Igor Štimac, who invited Gotovina to give the opening kick the next time Croatia plays Serbia, because we all know that what makes Balkan football matches so dull is the complete absence of nationalist provocation. Surprisingly, the person who participated least of all in the mass invitation to escalate was Gotovina himself, who declined to glorify the war in his arrival speech, told reporters he was going on holiday rather than to veterans’ rallies, and gave a surprisingly conciliatory interview to an outré Serbian tabloid. One possible explanation: the highly reticent philosopher Žarko Puhosvki thinks that Gotovina is preparing himself for a political career, and in that case it is best to move the Etch-a-Sketch to the centre.

Inflammatory displays

Refueling 1991: The year 1991 was bad one for the Bordeaux harvest and for people, but if you were an aspiring paramilitarian or a national demagogue in the Balkans, it was great. That year saw the emergence of most of the extremists who would be accused of crimes in the years to come, and in Croatia, the incidents that would lead to most of the bitter resentments that mark nationalist politics today – among them the destruction of Vukovar, which was commemorated over the weekend following the appeal verdict. If the heroes of 1991 had their day in the sun in Croatia on Friday, in Serbia they have been out of fashion for years (the fact that one of their successors is currently president and another is prime minister owes a lot to some humiliating but ineffective ceremonies of public repudiation of their political history). But always ready to celebrate crime, and sometimes commit it, the Serbian Radical Party – their president is waiting for an ICTY verdict himself – saw its moment. They organized a poorly attended public protest (their last one had almost as many participants as police, and ended with 179 arrests) of the appeals verdict, and for good measure they burned a Croatian flag. No doubt they were grateful for the opportunity to be burning things again.

Tuquoquism: Oluja was okay because Vukovar and Srebrenica were really bad. The people charged in this case (and especially the people whose orders they carried out) were innocent because their war opponents were a lot more guilty. Every crime is justified by another crime. Heard these arguments before? Courts reject them and give them a label: tu quoque (in Latin this means “so’s your mother”). The reason courts reject them is that their job is only to weigh the facts that are under consideration, not some real or potential other case. That is a decent principle in everyday morality too, enshrined in too many proverbs and folk sayings to name. In politics, though, and especially in the amateur discussions that spring up around politics, people do love themselves some tu quoque. Why didn’t the trial chamber mention Vukovar? Hint: it wasn’t in the indictment. But never mind, the lack of a conviction for one crime means there should be no convictions for any others. Sounds so right, and yet so wrong.

Reductio ab nacošem: Fitting the news into national categories was easy! For SETimes, “Croatia celebrates” and “Serbia [is] stunned.” Over in the world of France24, “Croats rejoice while Serbs fume.”  So in the eyes of the headline writers, the (only) people who responded to the event were (all, undifferentiated) Croats and (all, undifferentiated) Serbs. How is it possible to account for the fact that there are Croats and Serbs who did not share in the euphoria/outrage and who think for themselves? Once the headline collectivization has been performed, the only possible explanation has to be that they are in some unexplainable respect not Croats or Serbs (the fact that there are people in the world who take an interest in events but are yet neither Croats nor Serbs may prove more resistant to popular-media explanation). That this perception should appear plausible at all is a consequence of the success of nationalist politicians in making it appear that the least tolerant people in the population speak for the entire nation – or to paraphrase my colleague Chip Gagnon, to make the consequences of violence appear as though they are the causes. The people who do the dirty work know that they are not representative, of course, which explains the enthusiasm of Gotovina’s and Markač’s brother against the unarmed, Veselin Šljivančanin.

Soothing displays

Maintaining a disrespectful silence: Some of the people you might expect to chart a course of understanding avoiding the extremes have said – nothing. This derives largely from a sense that the thrilled and the outraged will have their day and take up all the space that is available for communication. What is soothing about this? It contains an implicit promise that the fireworks will fizzle out and the reasonable folk will be back. It would be more soothing to be certain that they really will be, of course.

Silvering the lining: Opposing the “new institutionalism” position which contends that all historical responsibility has been abolished is the official line taken by a number of high-ranking officials of the Republic of Croatia. President Ivo Josipović affirmed an ongoing obligation of the state to try and punish crimes. Prime minister Zoran Milanović promised that Croatia would “fulfill its debt to people who were wronged.” Foreign minister Vesna Pusić promised “no amnesty” for war crimes. This was the moderate official line, according to which there were crimes that domestic prosecution is obligated to address, and will, but that the two people charged were not the people responsible for them. This was not, however, the line endorsed by the majority of the ICTY appeals chamber, which dismissed evidence related to the planning and organisation of crimes. As Drago Hedl points out, whatever intentions about domestic law enforcement are expressed on high, the record is thin, the will is weak, and the probability is low.

Rara avis – a concern for the victims: The Youth Initiative for Human Rights pointed to the number of victims of unpunished crimes and the systematic character of the crimes and insisted that the Tribunal’s verdict did not eliminate the need to address unmet demands. The Humanitarian Law Centre predicted that as a result of the verdict “nobody will hold it against Croatia anymore” if crimes are never prosecuted. Women in Black promised autonomous answers to the problem that “the suffering of victims and survivors is clearly unimportant to institutions, just like ordinary people are unimportant to them, and because of that they replace justice with political games.”  And Documenta warned of the deep social consequences of a “tragedy with no epilogue.” To the degree that there will be people effectively working to demand responses, and not depending on ICTY to deliver them, there is some chance that last Friday’s verdict will not be the last that is heard of the story.

 What to make of the array of responses? Still they indicate a problem raised but not addressed. But it should not be surprising that the story does not end with a flag-waving whimper. No court has ever done for a society what people in the society were not prepared to do for themselves. As much as politicians have shown that they are happy to make use of contested memories of the wars of the 1990s, the responses mostly tend to indicate that public memory is not a political issue but still a prepolitical one, in which identities remain heavily invested in a small number of prefabricated articulations.

The most vaspitani of the responses have taken the form of vague invitations to turn toward the future. The people making this invitation cannot predict the future of course, just like nobody else can. But the probability is always very high that if nobody does anything, the future will be a lot like the past.

Today is a good day to be a criminal.

The ICTY appeals chamber has issued a judgment acquitting Ante Gotovina and Mladen Markač of crimes for which they were previously convicted. At first reading, the judgment seems to be a radical one that creates new law – and the new law it creates will be encouraging to military commanders who want to target civilians and to politicians who want to engineer the expulsion of civilians.

Some people are delighted with the judgment and other people are outraged, with divisions following predictable political lines. The appeals chamber itself is no less divided. The five judges on the panel made most of their decisions by a 3-2 vote. Counting the main judgment, the two dissenting opinions, and the two separate opinions given by judges voting with the majority, five judges issued five opinions in the case. So consensus about the law and the facts of the case is not any greater among the members of the appeals chamber than it is in the public. This gives us a result that does not settle controversies, but keeps them burning for a good long time.

Gotovina’s counsel offered a Rodney King defence to the charge that civilians were encouraged to flee because of indiscriminate shelling of the towns where they lived. Shell by shell, they argued it could not be demonstrated which particular attack by explosives caused which civilian to flee. The appeals chamber accepted the argument, rejecting the prosecution’s contention that people were compelled to leave not by one or another particular shell, but by the overall environment of attack that comprised a central element of military strategy (para. 19).

The appeals chamber made a strange decision on the status of the joint criminal enterprise to forcibly expel the civilian population: they decided that their adoption of the Rodney King standard on shelling makes irrelevant the documentary evidence from the Brioni transcripts and the public statements of Franjo Tuđman that indicate that expulsion of the civilian population was a goal of the military operation. Instead they decided (paras. 81-82) that an examination of the Brioni transcripts does not indicate any specific order to make any specific artillery attack. So they decided that the “circumstantial evidence” (para. 91) does not demonstrate the existence of a joint criminal enterprise, while disregarding the direct evidence.

Here it gets weird. Referring to the implementation of plans to expel civilians, the appeals chamber reaches the conclusion that “discussion of pretexts for artillery attacks, of potential civilian departures, and of provision of exit corridors could be reasonably interpreted as referring to lawful combat operations and public relations efforts” (para. 93). Similarly they find that “the fact that Croatia adopted discriminatory measures after the departures of Serb civilians from the Krajina does not demonstrate that these departures were forced” (para. 95). Score one for poststructuralist literary theory.

Every finding is preceded with the phrase “Judges Agius and Pocar dissenting.” So what do Judges Agius and Pocar have to say?

Agius builds his dissent around the sense that the majority “seems to lose sight of the essential question in this appeals case, being whether, based on the totality of the evidence, it was reasonable for the Trial Chamber to conclude that the attacks on the four towns were unlawful. At every turn, rather than looking at the totality of the evidence and the findings, the majority takes an overly compartmentalised and narrow view” (para. 3). According to Agius, the majority found that the trial chamber adopted an incorrect standard for determining whether artillery attacks were illegal, but rather than applying a correct standard “proceeds to discard all the evidence on record” (para. 13). So Agius finds that majority got it “respectfully, but completely” (paras. 43, 71) wrong.

No words of respect from Pocar, who in explaining why he has decided to “disagree with the reasoning and any major conclusions of the majority” (para. 1) finds himself challenged by “the sheer volume of errors and misconstructions” (para. 2) in the judgment. Like Agius, Pocar determines that the appeals chamber rejects a standard but “fails to conduct the review of the evidence it enounced it would do” (para. 8). Fundamentally the appeals chamber dismissed one piece in a set of “mutually reinforcing evidence” (para. 16) and consequently dismissed the entirety of the remaining evidence. In particular the majority declines to consider evidence directly (but not circumstantially) related to the operation of the joint criminal enterprise (paras. 20-22). And he asks a compelling question: “even if the majority wished to acquit Gotovina and Markač entirely, one might wonder what the majority wanted to achieve by quashing the mere existence of the JCE rather than concentrating on Gotovina’s and Markač’s significant contributions to the JCE. I leave it as an open question” (para. 30). More categorically than Agius, Pocar delares, “I fundamentally dissent from the entire appeal judgment, which contradicts any sense of justice” (para. 39).

The appeals chamber did a good deal more than many of the people arguing for the innocence of Gotovina and Markač expected. It did not find that the wrong people were charged and that subordinates were scapegoated for crimes that had been planned by cvećke like Franjo Tuđman and Gojko Šušak. It found that there were no crimes.

This is new law. It invalidates the distinction between military and civilian targets in the Hague and Geneva Conventions by finding that any target can be retrospectively defined as having been military. And it empties of content the category of illegal war objectives by finding that the articulation of policy is not relevant in the task of characterising a policy.

Both of these new legal standards will be very encouraging to criminals and to military commanders who plan on targeting civilians in the future. Both of them will give hope to the people defending Radovan Karadžić and Ratko Mladić, because by the standard proposed in the appeals judgment, much of what they are charged with is not illegal.

If I were a prosecutor

But, first things first. If I were a defence lawyer, I would be inclined to offer the advice that most defence lawyers offer to defendants in criminal cases: do not present a defence unless you have to. Remember, the prosecution is required to prove guilt beyond a reasonable doubt, and the defence does not have to prove anything. All the defence has to do to get an acquittal is to raise doubt. When they start presenting their own evidence, they raise the risk of providing additional material for the prosecution.

This is especially the case if the defendant is, like Radovan Karadžić, guilty. What everyone but the defendants knows is that prosecutors love it when this kind of defendant decides to offer a case. It becomes a second prosecution case, offering the prosecutors both new evidence and the chance to introduce in rebuttal evidence that they were not able to introduce when it was their turn.

So let’s have a peek at the evidence that Karadžić submitted on 15 October in his defence. He gives us a written statement by Blagoje Kovačević, a Republika Srpska Army (VRS) colonel who ranked high among the commanders in the siege of Sarajevo from 1992 to 1995. The prosecutors ought to be able to use several parts of the statement for just the opposite purpose that Kovačević had in mind when he gave the statement, to great effect. All they need to do is ask him about some of his claims. Like the following ones:

• p. 2, para. 6: “the 1^st ABH /Army of Bosnia and Herzegovina/ Corps was in the city of Sarajevo under the control of the Muslim authorities. My information about the numerical strength of this Corps was based on my own estimation of the possible number of mobilised soldiers, which was about 80,000 combatants.”  For comparison (para. 7), he estimates the size of his own brigades at 2500. Prosecutors will want to be asking him about strategic issues and issues of policy. Kovačević claims that he was protecting civilians, but who did VRS consider to be a civilian, and who a combatant? The population of Sarajevo in 1991 was 361735 so the simple math tells you that he thought that about a quarter of the population were combatants.
• p. 2, para. 8: “There was no interest in taking areas which had not been ethnically defined as Serbian.”  Here again we are confronted with issues of definition. Specifically “ethnic” definition. How was this done, and by whom, and what importance did this definition take on in day to day military operations?
• p. 3, paras. 9 and 10: the “objective … was not to allow the Muslim forces a breakthrough from Sarajevo and their use on other battlefields.”  If this happened “the situation at the fronts would have drastically changed to the detriment of VRS.” This is fundamentally an argument that the siege of the city could be justified on the ground of military necessity. But it allows the prosecutors to ask how those grounds were formed in the minds of the VRS command.
• p. 13, para. 12: “Throughout the war the Muslims never hid their intention to provoke an incident which would be reason enough for the then UNPROFOR units or those of NATO to be deployed on their side. We were perfectly aware of the fact that the opposite side deliberately opened fire at times of truce in order to provoke a reaction on the part of our forces, so that we would then be blamed for causing the incident.”  Here Kovačević is inviting the prosecutors to ask him about two topics – first, the source of his knowledge about other people’s intentions, and second, the genesis of every single “incident” about which he as a commander would be expected to know. If anything done by his forces was an action rather than a reaction, it indicates that policy was not what he says it was.
• pp. 3 and 4, para. 14: Referring to incidents in which explosives were used to attack crowds of civilians, Kovačević says “I have no information as to who caused these incidents, but they could have been caused by anyone in Sarajevo.”  The passage is followed by speculation about what he might have found if he had investigated. Here he opens up lines of questioning as to the positioning of forces and arms, about chain of command, and about who was authorised to issue orders and who was obligated to be informed. In cases where chains of command form an element of criminal responsibility, it is a violation for commanders not to know things that they are obligated to know.
• p. 4, para. 15: “I have no knowledge to the effect that the final objective for Sarajevo of the Serbian authorities was a division of the city. It is mistaken to believe that the Serbs wanted a division, because Serbs too lived in the city. The Muslims wanted to drive the Serbs away from Sarajevo and not the other way around.”  Here Kovačević is opening up lines of questioning about paths and sources of information used by military commanders. If he had information about political goals of both sides, where did this information come from? Was there information about political goals coming from the higher ranks of RS politicians, including Karadžić? The statement also invites evidence to be introduced in the form of the stated goals of RS political leaders, including Karadžić, in interviews and news articles in 1992 and 1993.
• p. 5, para. 24: “It was only in Muslim mass media that I saw that the possible victims of combat between our units and the adversary units of the 1^st BH Army Corps had been civilians.”  And para. 25: “Neither I nor my unit ever had the intention during combat to cause civilian casualties or wreak terror on civilians under the control of Muslim authorities.”  In the same paragraph, p. 6: “I claim that the army never sought to wield any psychological impact on civilians under the control of Muslim authorities.”  The prosecutors would be most likely to pursue this with questions not only about general tactics and about war aims, but about the purpose of individual events. When this missile was fired into this residential building, was there an intention to cause casualties or to bring about psychological effects? What was the purpose of sniper fire on this residential area on this date? You get the point.
• p. 6, para. 28: Kovačević states that he never gave orders to attack “civilians” or “means of public transportation.”  This is the occasion for the prosecutors to go through the diaries of artillery used, the news accounts, and the records that commanders are obligated to keep, and to ask what was the source of the command for large numbers of individual attacks. If the number is large enough over an extended period of time, a pattern of acts leads to a reasonable conclusion. But judges do not like patterns of acts, and the diaries ought to confirm that the pattern was not incidental.
• p. 7, para. 33: “My unit received orders from superior commands or the civilian authorities to the effect that in the event that fire was opened at civilians … an investigation was to be conducted and the perpetrators punished.”  p. 7, para. 34: “In any case we punished such breached of discipline.”  In this event there should be a record of the commands (something which appears unlikely given that Kovačević does not appear to know where they came from) and of the investigations and punishments. If the records cannot be produced or do not show that the number of investigations and punishments matches the number of breaches, then the obligation to prevent and punish violations has not been met. If the number of investigations and punishments is zero or very small, it is indication of the existence of a policy to commit violations.

This is just a partial sampling of questions and opportunities to introduce new evidence raised by one witness statement, probably not an especially major one and certainly not the only one to be offered in a defence case that will probably take well over a year (today there is another, from Dušan Škrba who has just begun his testimony). Look over the document yourself and you will find some more. Keep doing this with all the defence evidence and you will see that while there could be some places where Karadžić helps himself, most of what he is doing is presenting a second prosecution case – and it could be better than the prosecution’s original case, because he knows some things they do not know and because they can use material that they knew about but could not introduce once he introduces it.

The owl of Minerva screeches too much

People make comments, things happen, then things don’t happen.

This time the comment was made by Čedomir Jovanović, at the congress of the political party he heads. He wanted to make clear some unpopular facts about Serbia’s foreign policy in the region, and especially its failure to build a constructive relationship with Bosnia and Herzegovina. Jovanović and his Liberal Democratic Party (LDP) see the country’s closeness to Republika Srpska and confrontation with the central government as a losing game, built on denial of a difficult reality. So Jovanović decided to give it to them straight: don’t pretend their history is better than it is, don’t take their medals, don’t bless them, don’t pretend that the interest of the people is what folks were told it was in 1992. “Republika Srpska was built on genocide committed in Srebrenica, the largest committed since the Second World War,” he told his party members.

Recognition where it is due: the comment was courageous and truthful, and in the context of the whole speech offered a vision of how much better life could be in the region if politicians in the country would take an honest look at the recent past and what the national interest genuinely involves. But reality check 1: the politicians will never do that. And reality check 2: a bunch of people got angry. One group of people announced their intention to a file a lawsuit, saying that Jovanović had “offended all the Serbian victims” of something they got the neat idea (Freud much?) of calling the “Defensive-Fatherland war.” Not to be outdone by some verbally creative extremists, RS president Milorad Dodik said that Jovanović was “attributing collective responsibility to a whole people” and accepted a challenge to a public debate that was organised by the Tanjug news agency today.

Dodik’s main purpose was to repeat points that he had tried to establish ceremonially at the “twentieth anniversary” of RS (which was recognized as one of the two legal entities in Bosnia and Herzegovina shy of seventeen years ago, not twenty – that is, after the war and not before it): that RS was not founded on crime, that it was the victim of aggression, that there was no genocide in Srebrenica. He played a bit with numbers too, escalating the number of victims from the Serb villages around Srebrenica. There are 119 victims documented by IDC, at one point RS began claiming there were 600, then the late Milivoje Ivanišević doubled it to 1200, and in his TV appearance Dodik raised it to 3500. On the question of genocide, he spun an unusual historical web, in which he said that he “recognised” (konstatovao) that ICTY and ICJ had found that genocide occurred, but that he had never “recognised” (priznao) that the finding of fact was factual. As they say, ko razume shvatiće.

The moderator tried to give Jovanović the opportunity to find a common ground with Dodik, suggesting that his comment had been “taken out of context,” that it was “not directed against Republika Srpska as a collective but against the relation between Belgrade and Republika Srpska.” No dice, Jovanović said: “That sentence has a certain weight, and I do not intend to try to reduce that weight.” That made for a promising beginning. He gave himself a big job to do, to explicate the weight of history and what it has to do with political conflicts today. It would be hard to say that they got far past that beginning, though.

So why did the discussion not get so far? A lot of people will say that it because of the limitations of the participants. They would not be wrong, but there is more at stake here than a couple of public personalities who some people like and some people do not like.

How to describe the exchange? You don’t need to trust my description.  There is a video of it here and there is a partial transcript at LDP’s site, but they sadly seem to have decided to post the remarks of only one participant. So check it out and judge for yourselves. My impression is that once the two participants set out their initial positions the discussion deteriorated.

Partly this was the fault of Dodik. Although he is very wealthy and quite powerful, his populist inclination leads him to adopt speech and behaviour patterns that are just barely this side of rustic and abrupt, a style more suited to the birtija than the conference table. Considering that a good part of the viewing public was probably inclined to agree with him, it’s a great style for TV: walk away from content, offend people, and justify it with the standard line about not being “politically correct.” The broadcast went on for about 80 minutes, and as it went on Dodik resorted more to personal insults and repeating slogans. He snorted and smirked and interrupted. Did he leave Jovanović’s mother out of it? Silly question, what kind of Dodik would do that?

So does this mean that Jovanović emerged a hero? My impression is that he did not help himself a lot. He has a tendency to wander from topic to topic in the space between the beginning and ending of his sentences. He has a tendency to shout. He falls into unfortunate rhetorical constructions that result in unintentionally insulting exaggerations (“Bosnia is not a state, it is a cooking pot!” Uh huh, great.). He waves his arms when he gets excited. He confuses his own stature and reputation with the issue under discussion. All these things amount to mortal televisual sins in a context where at least half of the audience dislikes him to begin with and the point he needs to make is more important than he is.

So what did we find out? We found a lot about Dodik, as if we wanted to know: he makes claims and comparisons he knows are false, he dislikes both Belgrade and Sarajevo, he strangely has a thing about people who enjoy good ćevapi. He thinks that “Karadžić has his mistakes,” and that this is a meaningful admission. We also found out, as if we did not already know, that an effective answer to the kind of rhetoric Dodik uses is not more rhetoric of the same type. Jovanović got in a good one when he asked “Where has your politics led? To a war against Angelina Jolie!,” but the answer to misrepresentations is still facts rather than one liners. It seemed like the good guy’s shouting did less for the audience than the bad guy’s muttering.

It would be possible to take this analysis in a personal direction, to trace the problem to Čedomir Jovanović and the imbalance between his good impulses and courage on the one hand as his deficiencies as a spokesman for the position he advocates on the other. But that is a little bit pointless; however well or badly he is doing it, and whether he is the right person to be doing it, he is doing the good work. There is just not a lot of choice here.

The problem is more in the background fact that made it so painful to watch the shouty gesticulating guy take on the lying lummoxy guy. The issue is not about two personalities, or two political parties, or any kind of boxing match or duel. Any discussion of who won or lost – and there are lots of them on both sides, all of them claiming that one of them “smashed” or “tore apart” the other – misses the point that what is happening is not a fight or sports match. It is a misfired response to the need for people to know and understand what happened in the recent past, which still exerts a very strong influence on their life in the present. The shouting and insulting that political leaders do only show that political institutions do not have the capacity to meet that need.

Weak institutions are one thing, but when you see this kind of failed exchange at the top of institutional structures it has effects further down the structures. Because the people defending and hiding and relativising and trivialising crimes have a standard answer to the people who want them brought into the open – that the other folks are traitors, self-haters and mercenaries. And the people who want to bring out the facts have a standard answer to the people who are determined not to listen to them – that the other folks are criminals, immoral, deficient in education and civilisation. It can all be sort of fun up to a point, because you get all kinds of inventive names for people to use against one another. Missionary intelligentsia! The Forest Reich! There’s more. Hey, I come in as an outside observer and the diagnoses just write themselves, you know? But on the public level what it does is scare people off. Keep away from this side if you are afraid of being thought of as immoral! Keep away from this side if you are afraid of being thought of as a traitor! In fact, keep away from public life and the effort to understand your situation altogether. Have a nice glass of tennis matches and reality shows.

Milorad Dodik never wanted to free people from that burden. Čedomir Jovanović quite possibly would, but for a whole complex of reasons is not able. Together, they just make it heavier.

Keep on Trifkin’

One of the curiosities that emerged from the terrorist attacks in two places in Norway on 22 July comes out of the odd manifesto (document is an enormous PDF full of nonsense) that the killer produced and distributed shortly before the crime. In fact it might be hard to call it a manifesto: it has some original text, some cribbed and slightly altered text, and then whole articles and essays lifted from the work of an assemblage of wackos who would be familiar to people who follow the extreme right press and blog world out of commitment or a perverse desire for entertainment, but to nobody else.

I am not sure that I recommend reading the document; it’s less well crafted and reasoned than a below-average undergraduate essay. The fellow talks quite a lot about things he does not know about. He has a long passage on cultural conflicts in American universities (although he never even attended a Norwegian one). He has an extended discussion of the works of Teodor Adorno (which he clearly has not read). He has an overview of the history of the Ottoman Empire (which does not even reach the level of Miroljub Jevtić, who is at least funny). But most disconcerting to the več-nam-je-bilo-sranja-preko-glave crowd, he has the revelation that his path to violent idiocy began with his shock at the Kosovo bombing campaign in 1999. So to the other sets of concerns he understands badly, he added the history of the Balkans, and his main, heavily quoted and cribbed source on that (as well as on some theological topics!) is one Srđa Trifković. I have not done word counts, but this Trifković may be the single most heavily cited author in the manifesto, if your count excludes whole articles that are reproduced and works by people who write under pseudonyms they got from their local Fjord dealership.

Now, if you are familiar with the scholarly literature on the topics that Srđa Trifković writes about then you have quite possibly never heard of Trifković. He got a doctorate in 1990 but published his last peer-reviewed work in 1993. His work is not read by students, cited by scholars or reviewed in academic journals. His connection with universities is tenuous: he had a brief period as an adjunct at a private Catholic institution in Texas, and had been on the faculty of Rose Hill College, an abortive effort at Orthodox fundamentalist higher education that admitted 26 students in 1997 and 1998 and closed never having awarded a degree. He identifies himself as a visiting professor at the Faculty of Political Science in Banja Luka, which means that he comes for three-day visits to give lectures on the “theory of foreign policy” that fourth-year students are obligated to listen to (he is not listed as a member of the faculty, but then neither is anybody else as the page is nonexistent).

But if you followed diaspora politics in the 1990s you knew about him. He was the representative of Radovan Karadžić to the international press and the representative of Republika Srpska in London (he preferred to call himself a “Balkan affairs analyst with close links to the Bosnian Serbs”). He hung on in the Region for a bit, doing a stint as an advisor to the convicted war criminal Biljana Plavšić and another for the unindicted co-conspirator Vojislav Koštunica. He offered his interpretations of things like prophets and swords as a defence witness to ICTY in 2003 and 2008.

Mostly, though, he got involved in larger propaganda campaigns. He hung out at an institute that was named for an old James Garner television vehicle that declared as its mission “to preserve the institutions of the Christian West”. He hung out at another institute named after a poet who, they say, “gave his life in the fight to free Balkan Christians from Islamic rule” (actually he died of fever, but whatever). He put out a couple of books seeking to persuade people that civilisation is fundamentally threatened by Islam (let him summarise his own argument, no?). He found the time to praise dear Mr Griffin and the charming folk at the BNP.

If you don’t follow the weirdness on the far right then all of this will have been under your radar (or of no interest to you, like the recipes for nostalgia-tinged home cooking that may very well be at the back of the weekly KKK newsletter). It is all a way of participating in the activity of the fringe folks who say Europe is turning into “Eurabia” and that all those seemingly nice immigrants who are doing all your work for you and serving you delicious kebab have a secret plan to reduce you to “dhimmitude“, which may sound like a charming term from the lexicon of Donovan but is actually meant to make you feel certain that living around people with a different nationality and religion is sinister. There are some well known outlets for this sort of thing, which I will not bother naming or linking.

So there is the connection: these are the waters into which Mr Trifković jumped, which Mr Breivik guzzled, and which people outside of that pond probably notice fairly rarely, maybe only on those occasions when unpopular political parties like BNP manage to make their ideas part of the programme of parties with supporters, like the Tories and Labour. It contributes to building an environment of hostility in which it was reasonable to expect that somebody, sooner or later, would feel inspired to commit the kind of crime that was eventually committed in Norway.

Does his personal history and prominence in the “thinking” of a mass killer make Trifković an accessory to a crime? Probably not in any way that a court would understand it. It would also be difficult to say that it damages his reputation, because his reputation is what it is.

For his part Trifković excuses himself with an analogy, claiming “by the same logic, it was the Beatles who inspired Charles Manson to kill Sharon Tate, because he found in their texts a coded invitation to that crime”. The difference, of course, is that the members of the Beatles had an artistic, literary and even a political profile distinguishable from the criminal act — not a whole history in its cloud of associations. As he told the court (p. 13903) in the Stakić case, “sweeping generalisations have a certain quality to them of reflecting an overall reality”.