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.

Ko preživi 11 godina…

Vojislav Šešelj leaves the scene as he entered it, a monument to other people’s failures. Having constructed his first political career in Bosnia-Hercegovina on the strength of (largely accurate) claims of corruption in the local Communist party, he went on to build a second one in Serbia with an opposition party constructed by counterintelligence services designed to preemptively occupy political space that could eventually be taken up by a genuine opposition party. Building on a career that drew on the failure of two consecutive parties, he made a well publicised third career in The Hague drawing on the failures of legal and medical institutions.

A gadfly in his Sarajevo days, he was pumped up into a proper horsefly in Serbia. Documentation from the Belgrade committee of Milošević’s Socialist Party of Serbia (SPS) offers some interesting details of his political rise: first engaged to aid in deposing the government of the province of Vojvodina in 1988, SPS was satisfied that he did not “make great demands” and decided to promote him as a front candidate for an available parliamentary seat in Rakovica in 1991.

From there Šešelj’s Serbian Radical Party grew to become the “reserve force” of SPS, propping it up when its electoral support fell short, openly advocating the goals that the nominal government was compelled to keep silent, and maintaining the illusion that more than one party – not just the officially ruling one, but also one that the ruling party publicized and financed – had access to state institutions. And he enjoyed himself in the way that sociopaths do, spending years threatening opponents, waving pistols around, increasing his waist size and making unfunny jokes about bananas.

It wasn’t only political dirty deeds that Šešelj did dirt cheap, though. Paramilitary organizations nominally under the command of his party operated during the conflicts in Croatia (more than anywhere else in Vukovar) and Bosnia-Hercegovina (where, for example, his forces participated in a massacre of civilians in Zvornik), engaging in the kind of intimidation and violence that was beneath the dignity of the military. Even while the conflict was ongoing, Šešelj was happy to acknowledge openly that these forces were armed, trained and financed through the military, the State Security (DB) service of Serbia, and the Serbian interior ministry. He engaged his forces within the borders of Serbia as well, particularly during a violent campaign over the course of 1992 to expel the ethnic Croat population of Vojvodina – at the peak of which most of the Croat population of the village of Hrtkovci was compelled to leave their homes.

Political power and privilege kept Šešelj mostly protected from prosecution while Milošević was in power, and for some time after he was no longer in power. His motivations for delivering himself to the International Criminal Tribunal for the Former Yugoslavia (ICTY) are a matter of discussion. On the one hand, he had been saying for years that he wanted very much to be charged and tried at ICTY, and that he “would never miss such a show.” In that context it is not surprising that just a month after an indictment against him was issued in January 2003, he would happily respond. On the other hand, there were many things he could be prosecuted for in Serbia from which ICTY protected him very effectively – among them his unclarified role in the conspiracy to murder prime minister Zoran Djindjić, which was carried out a short three weeks after his departure for the Netherlands.

Convicting Šešelj at ICTY was never likely to be a simple affair. One of the problems was that despite his encompassing public image, he had never done much independently – his activity was as a frontman, variously, for Milošević, for DB, for some organised crime groups. And while he was best known for making crass and outrageous public statements advocating violence and discrimination, it is not clear that being a vile and distasteful human being is a crime under international law. The strength of the case against him always depended on showing the existence and coordination of the joint criminal enterprise (JCE) to commit crimes for political purposes, and showing that his contribution to the JCE in those instances where he was not directly involved consisted in encouraging other people, who were more capable, to commit crimes.

That is to say that the likelihood of convicting Šešelj depended on ICTY doing some things that it did not do: convicting the head of the regime, Milošević; convicting the general who directed Milošević’s flows of arms, people and money, Perišić; and convicting the people who formed, trained and supplied the paramilitaries, Stanišić and Simatović. With no convictions in those cases, attributing the JCE to Šešelj would be like attributing the White Album to Ringo.

ICTY added to the inherent problems of the case by creating a few of their own, which were compounded by a set of problems created by the defendant. Briefly there were three fundamental problems with the management of Šešelj’s trial at ICTY: 1) they couldn’t start it, 2) they couldn’t conduct it, and 3) they couldn’t end it. I could go into detail on all of these levels, but people who have followed the case already know the details and they are uninteresting to everybody else.

But we are where we are: with a trial that began four years after the entry of the defendant into custody, dragged on for five more years (despite the defendant declining to present a defence), and that remains undecided two and one half years after the last word was spoken in oral arguments. ICTY already tried once to relieve itself of the defendant they do not know how to try, and failed. This time (new word, everyone, proprio motu) they figured they could do it if the judges gave the order without consulting the parties, and have ordered the release of the gravely ill defendant.

Will there be a verdict? One of the unusual characteristics of this judicial panel is that it contains a judge who was not present to hear the evidence, since the previous judge was removed from the case in a high-profile pissing contest. The new judge says (probably truthfully) that he needs time to catch up, and that the earliest a verdict can be expected is mid-2015. Liver metastases are not in the habit of waiting that long.

The defendant, for his part, says that he is not interested in medical treatment but revenge.

With this move, ICTY cements its reputation as a judicial establishment that convicts low- and middle-ranking offenders, acquits politicians and commanders, and engages in high-risk experiments that produce no result.

Gospodar noćnog saobračaja

Lifting arms like that can also be a core exercise.

Tuesday may weld but Wednesday casts asunder. Or so you might be tempted to think after last night’s surprising news that Vojislav Šešelj won a huge victory — a victory not only and probably not even primarily for him — in getting judge Frederik Harhoff removed from his case at ICTY on grounds of partiality.

You will remember Harhoff for the brouhaha he caused by writing a leaky little letter. That letter turned out to be the only piece of evidence discussed in relation to Šešelj’s motion. So no doubt, it continues to be an object of contention.

First as to why the decision, though it is his victory, does not primarily benefit Šešelj. There was never a certainty of conviction on the charges against Šešelj, particularly since they relied on indirect forms of responsibility and on showings that Šešelj exercised command when he was in fact subordinate to DB. But once the verdicts came down exonerating Perišić, Stanišić and Simatović, nobody any longer expected Šešelj to be convicted. If no guilt applies to the people who armed, trained, financed and organised the direct perpetrators of crimes, then none is likely to apply to a clown who was hired to wave pistols in front of cameras.

The rusty spoon of fate determined, though, that at one point Šešelj’s interests would coincide with a complex of others and deepen the mess into which ICTY has been sinking itself of late. Presiding judge Meron’s bold circumscriptions of the applicability of international law to really existing states and militaries (parastates and paramilitaries are still fair game) have meant that an interest in sustaining his credibility is now shared by defendants and ex-defendants from multiple sides, Meron’s Wikileak co-stars, defence counsel in ongoing, past and future cases, and the Thick White Četnik Duke. As the proverb says, well-oiled beds make low-friction bedfellows.

Concretely, though, the decision is not likely to do much to alter the course of Šešelj’s case. Its credibility was already damaged by rococo untimeliness and ulcer-inducing mismanagement, so one fiasco more or less means fairly little. The most likely outcome here is that a new judge is assigned to replace Harhoff and that the panel reaches its 2-1 decision a little later rather than a little sooner. It is possible that a rehearing could be ordered before a new panel, but not probable — though trial junkies could just love a trial that competes for longevity with Coronation Street. But most probably this decision will have minor effects on the process and no effect on the outcome.

The main effect will be on processes outside the Šešelj case. Like the letter that brought the ruling about, the ruling itself is symptomatic of the general malaise that derives from divisions within ICTY, which reflects a wider division among people interested in international law more generally. So what did the panel that dismissed judge Harhoff have to say? A few things, most of which are tangentially related to the grounds of Šešelj’s petition:

1. The panel confirmed that ICTY is deeply divided, by adding another 2-1 decision to a long list of 2-1 and 3-2 decisions on matters of fundamental importance where clear law or a united (or even well-managed) judiciary would seek unanimity and clarity.

2. The panel was unanimous in disapproving of a judge using leaks to the media to substitute for arguments in chambers. Judge Liu, writing in dissent, condemned the inappropriateness of the unpurloined letter in stronger language than the majority.

3. The panel agreed that ICTY started making new law in 2012. Both the majority and the dissenting opinion concur that the central issue was whether judge Harhoff had indicated that he faced a dilemma in applying “the current jurisprudence” of the Tribunal. This could have the effect of undermining the argument of people who would like to present recent appeals chamber decisions as though they are settled law.

4. As much as a single document can be said to prove anything (the old “killer fact!” theory), the panel might have indicated that in the oft-discussed contretemps between the Merovingians and the Harhoovers, the Merovingians could perhaps have the upper hand for the time being. But don’t take my word on this one, I’m not too sure and it is a job for a wizard or a Kremlinologist anyway. What is striking regardless of who has the upper hand is the extent to which activity like this demonstrates a competition in the assignment of blame: does it go to Meron whose innovations have contributed to dissension in the Tribunal, or to Harhoff who clumsily made it publicly known?

The upshot? In the first place, we are very much where we were before this happened, except ICTY’s credibility is a little more damaged. In the second place, we see an interesting arrangement of forces in which the nacoši are all on the same side regardless of nationality (but this was probably always the case).

Postscript: No links, sorry, I wrote this on a plane. I’m sure people who are interested will have no trouble finding a copy of the decision.

More fun with conspiracies

Dear old Luka Mišetić has found za shodno to reply to a post I put up on 23 June. There’s some playing with expressions involving straws, a little bit of recapitulation of the sinister workings of the Djupröven spy conspiracy, and some repetition of used courtroom and media arguments. Hi, Luka!

Now at every good bookseller

Warning: This blog post contains material promoting my new book.

Guilt, Responsibility and Denial: The Past at Stake in Post-Milošević Serbia. Philadelphia: University of Pennsylvania Press, 2013.

It has taken a long time, but the book is finally out! This means that if you order a copy you will actually receive a book as opposed to receiving a promise of a book in the future.

A funny thing: although most people will probably agree that predicting the future is not really a goal of social science, I did make one prediction in the book (a really easy one!) that turned out to be true:

…a situation that is ongoing can change unexpectedly. Some events that took place while the research was ongoing compelled me to revise the entire manuscript and research plan. They changed again between the time the manuscript was submitted and production of the book began, and will have changed again by the time the book reaches the reader’s hands.

To put that into context — the completed manuscript was sent to the publisher in July 2011. I made some revisions after that, mostly shortening the text and responding to suggestions from the reviewers, but made the decision not to revise continually to make the final product up to the minute, mostly because that would have been an impossible task. But I do remember watching, together with my students in beautiful Forlí, the live broadcast of the trial chamber’s judgment in the “Operation Storm” case in April 2011, and putting the details into the footnotes of Chapters 6 and 7 just as the judge was reading them out. That day I revised intensively to account for the new facts, continuing after the security person came by to tell me I had to leave my office because they were closing the building for the night. I could not have guessed at the time that the conviction in that case, like in the Momčilo Perišić case, would be reversed on appeal. And I certainly would not have guessed that the reversal would lead to a mini-rebellion in the judicial chambers or that one odd letter would inspire a fascinating crop of conspiracy theorists.

Hey, I’m just a simple country sociologist, not a Balkan prophet.

Still, here’s the basic argument of the book: the prospect of a large-scale confrontation with the violent legacy of the 1990s was always a difficult one, and what would have made it possible were sustained processes in which the public was well informed, engaged, and encouraged to participate. There were a whole lot of reasons why that did not happen, from structural to political ones, but many fascinating and partial things happened instead. I don’t think that any of the surprising things that happened at ICTY during the last year did much to undermine the applicability of that argument. If I were ambitious I might even argue that they strengthened it.

With any luck this year will mark a moment when people doing social research will have a lot to say about public memory in the region. I discussed some recent research in another post. But 2013 really has a bumper crop. There’s this one from Hariz Halilović, this one from Jelena Obradović.  In December there will be a new one from Elissa Helms. The discussion that was confined to lawyers and IR folks could be opening up, and that can only be a good thing.

Here comes the hardsell promotional bit:

A little bit of material, the table of contents and the preface, is available for preview here.

There is a page on Facebook which you are welcome to join for reviews, news, announcement of talks and other events.

The edition that is out is a hardcover edition — depending on how much interest it generates a paperback should be available before too long at a much lower price. So what to do about prices? One option is to order the book directly from the publisher. If you enter the promotional code P5P9 you will get a 20% discount. People in the UK might get an even better deal from The Book Depository which is offering it at a 24% discount. These are the best price deals I know about for now.

Ways to save even more money? If you ask your library to order it then they will spend money instead of you, and more people will get the chance to read it. If you are an instructor wanting to use it for a course or a reviewer who wants to say (maybe) nice things about it, you can request copies from the publisher (they ask you to pay a small amount for shipping).

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.

A few words about reconciliation

I was asked to prepare a short statement for an upcoming meeting about how people in the research community look at questions of reconciliation. Here it is in draft form.

A first observation: it may be misleading to cast discussion in terms of a category like “reconciliation.” The term has some implications that might be neither accurate nor welcome. The first is that before the conflict there was a pre-existing state of “conciliation” that can and should be recovered. This is probably both empirically inaccurate and historically tendentious. Yugoslavia may have offered a framework within which conflicts could be resolved peacefully (most of the time), but it neither resolved conflicts remaining from earlier periods nor overcame them. The second is that in the process of acquiring and sharing knowledge and achieving mutual recognition of experience something old will be recaptured rather than something new being built. I would be inclined to suggest that a solid foundation for mutual understanding and recognition would represent considerably more than clearing away a recently built record.

We last held this meeting two years ago, and at that point there was considerable discussion of how reconciliation could be achieved and considerable scepticism as to the likelihood of moving forward in a political atmosphere that often appeared hostile. Most of the obvious signs in the period in between appear to confirm the scepticism that was expressed, but there are some less obvious signs that might lead us to think differently. Beneath the surface, we understand a bit more than we used to understand, we acknowledge a few things we used to deny, and we communicate a little better than we used to communicate.

Does that sound overly optimistic? It very well could, considering some disconcerting signs around reconciliation since this meeting was last held:

• The ICTY appeals chamber has issued decisions in cases like Oluja, Haradinaj and Perišić that seemed more likely to keep controversy running rather than settling it, and that used reasoning that put the presumptive rights of states well ahead of the interests of victims.
• In several highly visible political contexts (for example the recent thematic debate on international criminal justice at the UN General assembly) there has been a  visible hardening of rhetoric and re-emergence of language used during the time of conflict. At the same time some governments have not shied away from the occasional production of incidents, including celebration and financing of accused and released criminals and the escalation of conflict in areas like the north of Kosovo, Vojvodina, Hercegovina and parts of Republika Srpska.
• It is easy to observe a strong nationalisation of cultural formations and public opinion, with aesthetics, language and education visibly subject to narrow ethnic criteria.
• The success of the effort of organisers and perpetrators of violence to construct themselves as representatives of entire “peoples” is apparent, with the strong tendency to speak in terms of “our” and “your” suffering, victimisation, responsibility, and so forth.

These might all be thought of as indications of difficulty in moving forward with reconciliation, perhaps even as signs that the process has stalled. It might be possible to trace all of these to a single cause: the absence of sustained engagement in the fields of culture, communication and politics, and a strong emphasis on formal and legal procedures involving mostly official agencies communicating with one another. In that sense it might be said that too many eggs have been put into the ICTY basket, with the effect of sidelining activity in a number of other fields. This has had the following consequences:

• A shift of the topic of concern from substantive to formal justice. Public discussion concentrates heavily (still) on the number and distribution of indictments issued, the comparative length of sentences, the legal status of different combatant sides in conflict. What receives far less attention is justice as it is perceived on the level of communities, in terms of recognition, reconstruction, acknowledgement, restoration of lost rights.
• Another way of looking at the same phenomenon could be to say that attention remains centred on perpetrators rather than victims. While the punishment (or acquittal) of perpetrators constitutes a portion of creating a historical record, it is only a part of the larger social story. For too long a time the part has been mistaken for the whole.
• Argument over judicial verdicts shows a distinct tendency to degenerate into adversarial hardening of competing interpretations. The “truth” as perceived by advocates on either side is either affirmed or undermined, as is the legitimacy of institutions involved. The contingency of trust in decisions and the institutions that make them stems from the exclusion of the public from processes and discussions over them.
• There is an expectation that all of the work – establishing facts, explaining them, integrating them into public understanding – will take place in the legal sphere. This has had the effect of relieving the cultural, educational and media spheres of responsibility, permitting the continuance and consolidation of conflict-era discourses in those areas.
• The entire situation has become more acute to the degree that the legal sphere fails (as it always going to do, at least partly) to accomplish its mission. Lack of movement in one sphere tends to encourage or intensify regression in all other spheres

Considering the type of movement we have seen, the first impulse may be to say that movement toward reconciliation is not happening. Considered over the longer term and on a larger scale, however, we have seen some interesting developments:

• Unqualified and complete denial is now a fringe phenomenon. We can observe a diminishing number of instances in which crimes are negated. Instead disagreement has migrated from the absolute to the relative: their size is contested, their place in comparative context, the ways in which they can be qualified as one type of crime or another. This is a mostly qualitative but nevertheless meaningful shift in the stake of debate.
• (Below the top level of government) there is meaningful cooperation between states in prosecuting crimes and revealing information, most significantly between Serbia and Croatia. All states in the region have some variety of institutionalised system for prosecuting crimes and establishing facts. The clear mutual interest of all states suggests that the scope of cooperation will broaden as time goes on (with or without REKOM).
• Despite the strong orientation of official cultural institutions to a tendentious representation of history, official cultural institutions are not the only ones that operate. Culture and civil society persistently, even without support, do the work that official institutions decline to do. This might be interpreted as pointing both to a need for discussion of the issues involved in reconciliation and to the existence of efforts to address this need (however much it is limited by a lack of support).
• (In some environments, but too narrow ones) people are talking to one another across ethnic boundaries and across the boundaries established by the kind of participation that was taken during the period of violence. One of the areas where the development is most visible is in the exchange of information and support among veterans from opposing sides in the conflict, but also more significantly (though on smaller scale) between veteran and victims. The further that events recede into the past, the more apparent is the shared interest of different types of groups in having access to more complete information and understanding.

What is needed in order to move further:

• We know a lot, but not enough. And the public does not know everything that researchers and institutions know. Inaccurate and incomplete information make wide-ranging discussion impossible, and distort its direction. The quality of information needs to be improved and good information needs to be made public
• To the degree possible, historical and legal “truths” should be kept autonomous from one another. Establishing or negating an indictee’s criminal guilt is not the same thing as telling the story of people’s experience, and a legal theory of crime is not the same as a historical explanation of causes.
• A greater number of opportunities for (as far as it is possible) unencumbered dialogue needs to be provided. Although it may sound like psychological cliché, it is not possible to overestimate the importance of encountering people who have been defined in advance only as members of a group as human beings.
• Attention needs to turn from accusation to affirmation – from demonstrating the criminal or moral burdens borne by some institutions and individuals to recognising the symbolic and moral needs of communities and victims.
• The publics of the region need to be welcomed into discussion and to feel welcomed.

In addition to things that need to be done, there are places where our knowledge and understanding are relatively strong, and places where they are relatively weak. I want to give a little bit of attention to the things that we need to know, and draw some attention to the work that is going on (that I know about) that is promising to get us there.

Let us posit at first that there are several fields in which we already know quite a lot, thanks to legal analyses by people like Judith Armatta and Tim Waters, and to political analyses by people like Jelena Subotić and Mladen Ostojić (among many others, certainly – one of the difficulties around specifying names at all is that very important people will inevitably be left out. This is possibly one of the happier misfortunes available because it is a sign that the field of research that has been opened here is both empirically and theoretically productive).

• We need comparative approaches examining how things are done in different parts of the region, and comparing the experience of transitional justice and reconciliation in Southeast Europe with the experience of other regions in the world that have undertaken similar efforts, especially but not only in South and Central America and in Africa (here I would draw attention to ongoing research by Ivor Sokolić, Chris Lamont, Marijana Toma, and Victor Peskin).
• We need historical approaches that will elucidate institutional and other backgrounds of violence, and trace memories and appropriations of memory as they have been engaged in the period following violence (here I would draw attention to the ongoing historical work by Christian Nielsen, and the ongoing ethnographic work by Maja Lovrenović).
• We need culturally founded approaches that explain multiple meanings and understandings that develop around memory and victimisation, conflicts over the valence of memory and how these conflicts are addressed or resolved when they are (Here I would draw attention to both published and ongoing research by Elissa Helms, Jasna Dragović, Janine Clark and Vjeran Pavlaković).
• We need ethnographic and political research that addresses how people and their experiences are categorised and how communities and the divisions within are understood, and how dialogue develops under the constraints imposed by the conditions under which people live (here I would draw attention to groundbreaking work by Kristen Perrin, Jelena Obradović, and Vjollca Krasniqi).

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.