Miki and Kiki: an epistolary novel

If you read this blog, then you already know about the interesting post-election political developments in Croatia. Following on a result that saw the two largest parties more or less tied, with a surprisingly large vote going to a protest party composed of dilettantes and small-scale egomaniacs, a presidential attempt to stage a coup and impose a “non-party” government under her control was avoided, and the protest party eventually decided, after several feints left and right, to form a coalition with the right-wing HDZ, a party that has spent the last several years systematically undoing the small steps to respectability that it took after the death of its founder, Franjo Tudjman. HDZ proceeded to form a government of the type that an extremist party that won an overwhelming majority would form, with its leader, “deputy” prime minister Tomislav Karamarko, taking every opportunity to promise a large-scale revolution that encompasses policing of political orientation, private thoughts, culture, and the tendency of people to be critical toward his party.

The illusion of coalition was maintained by naming as prime minister a pharmaceuticals marketer who carries no political weight whatsoever and lacks as much in political support and experience as he does in political skills. Tim “Tihomir” Orešković lost no time in demonstrating that the members of his government ask him about nothing and that his level of proficiency in his native language would not allow him to understand them if they did. He may or may not have known that he appointed a minister of veterans’ affairs who promised to maintain a “registry of traitors” and a minister of culture with the most interesting ideas about fascist martyrdom. But has there ever been a reaction against the people who did know and had no fear of saying so. To get a taste of how the supporters of Croatian Kulturkampf respond to being criticised, have a look at the messages of support they get at sites like the Facebook page dedicated to loyalty to Zlatko Hasanbegović, the very minor historian with fascinating sympathies who has become minister of culture.

Aware that they are surrounded by critics, the politicians on the right have decided to behave as though they were surrounded by enemies. As a result, over the course of a few weeks it has been easy to observe an escalation of tension and intolerance not seen since the war period, when a multicultural cartel of ex-Communists discovered that hatred and far-right populism could be a very profitable career indeed.

Among the people who noticed this was Milorad Pupovac, the mild-mannered linguist who is president of the minority party the Serbian National Council (SNV). Pupovac has been as “loyal” a minority as it is possible to be, representing the interests of Serbs to the government in a non-militant way during the conflict years, and lending his party’s support to form governments both left and right in the period of free elections after 2000. His party and the party’s magazine Novosti  maintain a consistently critical stance toward the behaviour of the state, balanced by a commitment to its institutions and to their democratic character. As a reward for this he is regularly the object of attacks like this one, where he is labelled “a fifth columnist of philochetnik provenance.” People in public life become accustomed to this kind of marginalising rhetoric, but it is another matter when the target is expanded well beyond them. So Pupovac expressed his concerns in a letter to the president of Croatia, Kolinda Grabar-Kitarović (it was intended to be a private letter, but when news of it leaked then Novosti published the full text).

In his letter Pupovac notes that “in the past few weeks I have followed the growing atmosphere of intolerance and messages of hatred directed at political, ethnic and other minorities in our country.” He goes on to say that “the tolerance and recognition of differences in politics and identity that has taken years, even decades to build, is being destroyed before our eyes and threatens to endanger the basic achievements of democracy, political stability and social security in our country.”

He then details a series of attacks in which several people, himself included, have been recently threatened, verbally abused, subject to acts of vandalism, and targeted by racist language, observing that “the objects of this language are not the people who lied continually and still lie, nor the people who stole continually and still steal, or the people who actually did kill or encourage people to kill, but rather people who in a variety of ways have dedicated their activity and a good part of their lives to a struggle against all that.”

And he goes on to develop his political argument: “I am writing to ask – what political or party-based reason is there that can justify the renewed production of enmity, intolerance, hatred and possibly violence in the places that we live and in the country in general? […] What good can this bring to any individual or to the country?” Perhaps not expecting a reply, he adds, “Nobody’s failure to respond to the need to answer these questions and to address them openly will be respected, now or in the future, as corresponding to the obligations of people like us who have pledged fealty to the constitution and have the duty to preserve the best of what we have inherited and also to protect our society from the worst things that come from the same inheritance.”

Following a series of negative responses to news reports about Pupovac’s letter, the Croatian Journalists’ Association (HND) sent its own letter asking, “Dear President of the Republic, what has HND done to deserve to be attacked with fascist methods?”

As it turns out, the president responded very quickly – and publicly, with the text made available, letterhead and all, at the presidency web site. The letter is detailed and fascinating for a number of reasons, but not least because of the psychological portrait it offers of the group of people exercising political power. Let me try to break down the main themes for you, although for reasons that will become apparent I will have to do so without using any ‘journalistic’ or ‘artistic’ freedom, or ‘satire.’

1. Your social frustrations are like my personal frustrations. In responding to Pupovac’s description of people attacked for their ethnic identity or political stance, Grabar-Kitarović notes that she has been opposed by her political opponents. Or as she puts it in her letter, “I largely agree with your contention that intolerance has grown in Croatian society. I felt this especially strongly immediately after my return to Croatia in September 2014 [in order to be a candidate for the presidency — EDG] … returning to Zagreb, I felt a great disappointment and concern because Croatia had obviously gone backward with respect to mutual recognition and respect. I was very unpleasantly surprised by the overall pessimism and low level of political communication, as by the inappropriate and irresponsible ways in which people were labelled. I felt the need to say so openly even then. Unfortunately, I experienced that atmosphere of intolerance right on the night of the first round of elections when the former prime minister uttered the sentence, ‘It’s us or them’.” The former prime minister, now (still) head of the opposition Social Democratic Party (SDP) makes another appearance in the letter, raising a question whether the president is certain about who she is writing to.
2. Whatever happens to you is your fault, or your former coalition partner’s, whatever. The letter continues with an effort to kick the ball down the court, tracing intolerance in the present to the intensity of political opposition in the past, and once more, apparently, telling Pupovac that the (original) source of his misery is the former prime minister Zoran Milanović. Or as the president puts it, “So, if we want to talk about the causes that have led to the ‘the growth of intolerance and the strengthening of hate speech,’ we cannot avoid radicalizing messages and we have to ask how much they have lent courage to people who think alike, and to people who do not, to act similarly. Because of that, my dear Mr Pupovac, while agreeing with you that intolerance has grown in Croatia, I nonetheless have to say that this process did not begin ‘after the formation and confirmation of the new government,’ but much earlier. Unfortunately that rhetoric has a long history, so the president of what is now the largest opposition party displays arrogance and insolence as, he says, the only language that ‘some people’ understand, and promises that he will ‘give us hell.’ In that regard it is necessary to ask whether your personal negative experiences might not be, after all, at least in part a consequence of the production of ideological and orientational tension that has been going on, intentionally or not, for years?”
3. The victims of intolerance are more intolerant than we are. The president moves on to the cases that Pupovac has offered as instances of intolerant attacks, and finds them to be unworthy victims. An objective analysis would reveal that they have been asking to be attacked for a long time. Or in the president’s words, “In your letter you mention as victims of ‘threats and outbreaks of hate speech’ several public figures and organisations. I condemn these acts along with you. But I am nonetheless obligated to point out that among the people you have mentioned there are several who have for years, through their public activity, provoked, irritated, and insulted the greater part of Croatian public opinion, who have inaccurately portrayed and even ridiculed the Homeland War and, fundamentally, deny reality, and implicitly the very idea of the Croatian state, creating around themselves an atmosphere of tension, exclusivity, and intolerance. I do not say this in order to justify insults and threats toward those people, which I consider unacceptable. But nonetheless I believe that in judging undesirable phenomena, taking into account in particular that in the past years the bodies of state authority have not once reacted to their ridicule and provocation, it is necessary to be objective.”
4. There are victims that have not been mentioned, such as fascists and women. The president continues by bringing forward examples in which she and the members of her family have been victims of intolerance. To wit: “How would you categorise, for example, what happened to a member of my immediate family recently in the middle of Rijeka, when a passerby spat at him and called him an ‘ustaša’? I am certain that you will agree with me that this act is not an expression of tolerance. Somebody negatively radicalised the person who did that. Is it possible that that person is hiding behind the words ‘tolerance’ and ‘coexistence’? But that is not the only form of intolerance. Personally, I have the unfortunate everyday experience that people discriminate against me in their statements and comments simply because I am a woman.” Here it becomes difficult to follow the president’s reasoning. There is one statement that is undoubtedly true – that she is frequently the object of demeaning rhetoric because of her gender – and one statement that is nebulous, involving somebody else being attacked for something they are most likely not, and attributing a set of motives to another person who is unknown. Let’s split the difference and figure that she is arguing that not all hatred is ethnic.
5. What is with you minorities, why do you keep threatening us? There follows a set of arguments indicating that minorities of all types need to exercise greater self-control, and to be sensitive to the fact that members of the majority feel threatened by them. In this section the president argues for balance, declaring that “in the same way we have to condemn acts that are directed against the equality, security, and dignity of political, ethnic, and other minorities in Croatia, we also have to condemn all acts that insult the Croatian people or any other majority community.” In a stranger turn, she goes on to dismiss in advance a number of the cultural covers under which provocation may travel, arguing that “obvious provocation and abuse of the national feelings of the Croatian people and the large majority of Croatian citizens who love their country cannot be called ‘performance,’ defended as expressions of ‘journalistic’ or ‘artistic’ freedom, or labeled as ‘satire’.” It is not clear what brought this on, though it could be a response to Pupovac raising in his letter attacks against Oliver Frljić, the politically engaged theatre director who is quite taken with Brecht’s alienation effect. But she groups him together with more traditional political activists as she continues, condemning “organisations and individuals who consider themselves to be the protectors of democracy and tolerance.”

The president’s letter concludes with a strange polemical point, a tendentious demand, and a concession. First she poses a rhetorical question: “I am obligated ask whether ‘totalitarian methods’ are exclusively Fascist? Why do we always avoid condemning Communism?” Then she declares that she expects “from everybody, but especially the people mentioned here, to oppose provocation and irritation of all kinds.” Finally she offers to engage in a discussion on intolerance if the representatives of minority political parties will organise it.

The exchange is currently high on the list of tabloid headlines in Croatia, but it is especially interesting for what it reveals about the thinking processes of people who are exercising political power based on a conception of national representativeness and are consumed by the view that majorities are threatened. Meanwhile, it seems that Pupovac is now intending to send another letter to the president. In it we presume that he will be neither provocative nor irritating, and will keep in mind that she is not fond of overly ambitious satire.

 

Language is a virus from the margins of politics

onda su došli popovi….

I say elevator, you say lift, big deal, it’s only a problem when we start talking about pants. But there are languages where these kinds of distinctions provoke controversy and even violence, not because they are intrinsically meaningful but because big identities are invested in questions like the presence or absence of the letter “J.”

On the question of whether there is a Serbo-Croatian/Croato-Serbian language or whether this is two languages, three, or, since 2006, four, I remain determinedly and blissfully agnostic. As long as the hearer knows what the speaker is talking about, there’s no problem with people calling things whatever makes them happy. At the institution where I work I have been told that the policy is that we never say “Serbo-Croatian” but should say “Serbian slash Croatian.” I put this down to an obsession among sedentary academics with slashing people (NB: You can’t spell “Jason” without a “J”).

Because really this is a symbolic matter of no consequence, and satisfying people’s symbolic desires is a little bit like saying “thank you” when you are not really grateful or “sorry” when you have no genuine regrets. The fact that it is dishonest in a meaningless way is compensated by the fact that it is polite.

What makes these distinctions meaningful is the sets of associations that they call forward. The question of whether one set of habits related speaking and writing constitutes a “language” is least of all a linguistic question, and more than anything a political one. When Yugoslavia existed it was a coded way of expressing concern about numerical and cultural domination, and after Yugoslavia stumbled away through a pool of blood it became a signifier of prestige (as indicated by the similarly content-free dispute in the smaller entity of Bosnia-Hercegovina over whether there is a “bosanski” language).

The recent inflammation of dispute in Vukovar is a case in point. This is a city destroyed during the last war between Serbia and Croatia, occupied for a period by a parastate that made its best effort to erase all traces of Croatian identity, and returned to an authority that made its best effort to erase all traces of Serbian identity. It’s a sad fate for a town with a long multicultural history, but if there is one thing the nacoši of both dominant adjectives agree on it is the necessity of demolishing the other. This was acceptable populist policy as long as one side was weak, another side was strong, and states and political environments were at best semilegal.

Little factors like peace, legality and acceptance of the standards of the European Union disrupted the effort to translate military victory into a social order, though. Croatia has accepted the European obligation to protect the rights of minorities, and since the principle that Serbian and Croatian are separate languages has moved from coffee chitchat to law, that means protecting their linguistic rights as well. How has the Croatian government interpreted this? By deciding, against the resistance of most of the politically active population of Vukovar, that they would see the law observed and put up (five) bilingual signs on public buildings in the city. And since the question of which linguistic habit is Croatian and which one is Serbian, when it moves out of the territory of charming ethnic jokes and into codification, is one on which people can have endless nonproductive discussions, it is the most visible difference (not really a difference) that makes the Serbian part of the signs Serbian: the bottom part of the sign say the same thing as the top part, but in Cyrillic rather than Latin script. The fact that the difference has to do with letters underscores that the signs are a symbolic means of meeting a symbolic obligation.

This made members of veterans’ groups and professional carriers of particular national identities not one bit happy. One group, the picturesquely named “Croatorum” (after the kind of institution they should be sent to?) helpfully called the signs “genocide.” The signs went up early Monday morning, police were stationed near them to keep vandals away, and by noon crowds had formed, broken through lines of nonresisting police, and smashed the signs with a hammer. Upon which new signs were put up, and police let folks through with hammers again to smash the signs. And again. The representatives of groups dedicated to the exclusive national character of their town promised that as long as they have hammers, they will hammer in the morning, they will hammer in the evening, all over the local tax office.

So there is a predictable confrontation, not especially helpful to the government, but the glove has been laid down by both sides. The government is in a position where it has to have the law, including the law on minority rights, observed – and it also has the challenge of seeing that this happens without violence, which is why the police is heavily present but lightly reacting. The career veterans and their supporters in various opposition political parties and anti-government cleropolitical and parapolitical groups, are determined to draw the confrontation out a long as possible and hope to force the government to back down.

Eighteen years after Vukovar was “reintegrated” into Croatia, why is this happening? Let’s be clear: it is a conflict over whether the sign on the building of the “Porezna uprava” should also say ”Порезна управа” (which is itself not idiomatic Serbian; in Serbia the tax office would be called ”Пореска управа” – there will be a quiz for anyone who has not yet fallen asleep). Maybe a clue can be found in a single fact about the person who took the first hammer to the first sign: he is 73 years old.

Do the younger people in Vukovar, of whatever nationality, care? Maybe some of them do, but for the most part if they are employed they are not in Vukovar. The city was “reintegrated” territorially, but not politically or economically, and one of the few profitable jobs out there (available only to members of a certain generation) is being a veteran with a chip on your shoulder and time on your hands. Small surprise that there should be resistance to the introduction of European standards in minority protection in a place that has not been introduced to European standards in any other field.

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.