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Chapter 4

Approaches to Guilt

As long as the Milošević regime controlled most media in Serbia, denial and claims of victimization were the most generally available perspectives on guilt. In other countries of the former Yugoslavia, rejection of the possibility that crimes were committed constituted, at least for some people, an essential part of national identity and national pride.¹ Two weeks after Slobodan Milošević was sent to face trial in The Hague, ICTY presented the government of neighboring Croatia with indictments against two army generals, Rahim Ademi and Ante Gotovina. After a bitter political debate, the government accepted the indictments and agreed that the accused would be delivered for trial. However, just as large displays of public sympathy in Croatia in February 2001 interfered with the arrest and trial of General Mirko Norac, accused of the massacre of Serb civilians around Gospić in 1991,² in July there were also indications of a current of denial in public opinion.³ A group of ten prominent Croatian athletes, led by the tennis champion Goran Ivanišević, published an open letter against the indictments, declaring: “This is an effort to alter the fact of who is the victim and who is the aggressor. The only truth is that Croatia was the victim, and its generals and soldiers were heroes.”⁴

The position advocated by the athletes had considerable resonance in public opinion,⁵ though it was not the position of a series of Croatian governments. President Ivo Josipović and his predecessor Stjepan Mesić have been outspoken in advocating for the need to acknowledge and try crimes committed by Croatian forces. However, for states whose legitimacy derives in part from the celebration of their wars for independence, the argument over responsibility represents an ongoing source of controversy. Recognition of the guilt of people who committed crimes risks calling into question the wars that were fought and the independence that was gained through them.

The legitimacy of Serbia’s statehood depends far less on perception of the aims of the wars as legitimate (though the legitimacy of the Bosnian Serb entity depends on this very much indeed). Serbia neither gained nor fought for independence, but was an entity from which other states declared independence—a condition that strengthened security in the continuity of Serbia’s statehood while undermining its prestige as a state. There is less motivation to advance positions like those advocated by the group of Croatian athletes discussed above. This perversely fortuitous circumstance, combined with the passage of time and the widespread diffusion of evidence of violations, has meant that the position that there is no guilt to be assigned is held by a vocal but diminishing minority.

An early challenge to the consensus of denial came with the broadcast of the BBC-produced documentary A Cry from the Grave, about the 1995 massacre in Srebrenica. The film had been shown a few times in private showings to small audiences in Belgrade, and in 2001 was broadcast on the independent B92 television station (launched to supplement the radio station in October 2000), to controversial reception.⁶ In July 2001, three months after Milošević was delivered to The Hague, the documentary was broadcast on the state RTS television network, to a considerably larger audience. An exchange in the Serbian parliament followed the broadcast, with Branislav Ivković, a leader of Milošević’s Socialist Party of Serbia (SPS), accusing B92 and RTS of selectively ignoring crimes, and of broadcasting exclusively “propaganda” aimed at “establishing a feeling of shame and embarrassment among the Serbian people.” But after watching the film even Ivković backtracked from this position. When asked by a reporter whether he thought the massacre in Srebrenica did not in fact take place, he replied that he “allowed that there were crimes.”⁷ While this was not much of an admission, it came from the chief representative of the political party from whose ranks ICTY’s most prominent indictee came, and suggested that even Milošević’s supporters could be receptive to new information.

Similar conclusions could be suggested on the basis of a (nonrandom sample telephone) survey conducted in July 2001 by the weekly magazine NIN. Although only 36.5 percent of respondents supported the decision to send Milošević to The Hague, 57.5 percent agreed that he was responsible for war crimes. Among the main objections to Milošević’s extradition were the hurried manner in which it was carried out,⁸ the compromising timing of the act,⁹ and the belief that an international trial would make it impossible to bring Milošević to account for domestic crimes.¹⁰

While the change of regime and the increased availability of information may have encouraged a higher level of readiness to address questions of guilt, the question remained as to how. This chapter discusses the main mechanisms that have been used for establishing guilt and affirming responsibility in the wars of Yugoslav succession: national courts in the countries involved, international courts and tribunals, and “truth commissions.”

The Role of National Courts

Clearly the domestic judicial institutions of the countries where violations of international law were committed play an important role in addressing guilt for those crimes. There are no crimes in the statute of ICTY or ICC that are not also crimes under the criminal codes of all the successor states to Yugoslavia (as they are in the criminal codes of every UN member state). The Hague and Geneva Conventions on the conduct of war are also binding on all combatants. Toward the beginning of the wars in October 1991, the Yugoslav army issued a declaration detailing its recognition of the obligations imposed by the Hague and Geneva Conventions.¹¹ A joint declaration of the warring parties in the Croatian conflict and the International Committee of the Red Cross in 1991 detailed obligations under the two conventions, and the three warring parties in Bosnia-Herzegovina signed a similar joint declaration in 1992.¹² Combatants demonstrated their recognition of the authority of international law in indirect ways as well: Vasiljević tells of a discharged paramilitary fighter in the Bosnian War who was issued a document declaring that he “participated in the struggles for the liberation of the Serbian territory of Zvornik and did not participate in any criminal activities.”¹³

Obviously these agreements and declarations did not achieve much in terms of actually preventing violations.¹⁴ On the contrary, a tremendous abyss between the public rhetoric of political leaders and the actual behavior of their administrative and military forces was apparent throughout the wars. The declarations do show, however, that at no time during the wars could the leaders of any state or entity claim that they were unaware of or did not recognize their obligations under international law. These obligations were not imposed, but derived from domestic law, from agreements voluntarily signed by the combatants, and from declarations made openly by the combatants. Among the obligations are the duties to prevent violations and to record and punish violations.

If one factor contributed more than others to the involvement of international organizations and the United Nations in the wars of Yugoslav succession, it was the failure of the warring parties to meet the obligations they had recognized under international law. Not only were violations not prevented, they were committed at a level that both aroused international concern and appeared to represent state policy.¹⁵

The story of information gathering, prosecution, and punishment is somewhat more complicated. Trials were conducted in Serbia, Croatia, and Bosnia-Herzegovina, principally against members of minority groups charged with committing offenses against members of the majority population.¹⁶ For the most part these trials were of a piece with the war itself. In Serbia, a few trials for war crimes committed by Serb paramilitary forces did take place—for example, the prosecution of the Vučković brothers that began in Šabac in 1994. Vojin Vučković was convicted of illegal possession of weapons and Dušan Vučković for firing on a group of Bosnian civilians, murdering twenty of them and injuring sixteen.¹⁷ This was, however, a “substitute” prosecution—members of a paramilitary formation were charged, but there was no inquiry into the state sources of their command and supply. In many such cases prosecutions were filed but the trials were not carried to conclusion. In the Vučković brothers case, the principal suspect, Dušan Vučković, had been dismissed from the army in 1982 with a diagnosis of alcoholism and severe psychological illness, meaning that (1) a rhetorical wall was constructed between the military and the crimes, and (2) a ground was established not only to contest a prison sentence, but for any observer to trace the crimes to an individual condition rather than a political setting. Vučković was in fact charged with only a small portion of the offenses to which he had confessed, and the role of the Serbian Radical Party (Srpska Radikalna Stranka, SRS), which organized his paramilitary formation, was never raised.¹⁸

Acting on evidence of both violations of international law and failure of legal bodies, the UN Security Council adopted a series of resolutions (721, 752, and 764) in 1991 and 1992, declaring the conduct of the wars to be a matter of international concern. In Resolution 771 (1992) the Security Council enumerated violations of international humanitarian law and demanded that all sides cease committing them. The 1992 London conference on Yugoslavia adopted an instruction to governments and international organizations to inform the UN about the observance of Resolution 771, and this instruction was formalized in Resolution 780 (1992), which established a commission of experts to report on violations. On the basis of the commission’s report of February 1993, the Security Council adopted Resolution 808 (1993), which called for the establishment of an international court and called on the secretary general to prepare the court’s statute. The secretary general’s response was adopted in Resolution 827 (1993) as the ICTY statute.

This series of events indicates that at least one major factor that led to the establishment of ICTY, the first international criminal tribunal to be set up by the UN, and hence the first concrete assertion of the right of international governance in humanitarian matters, was the failure of domestic courts in the former SFRJ to do their job. Mark Ellis argues:

Although the Tribunal has primacy over national courts, which defer to its competence, it still has recognized the right of national courts to conduct war-crimes trials. In creating the Tribunal, the United Nations made clear that its intention was to encourage states to prosecute war criminals. It was not interested in depriving national courts of their jurisdiction over these types of crimes. However, so long as national judicial systems are viewed as partial, ineffective, and incapable of diligently undertaking prosecutions, the Tribunal will rightfully retain its primacy over those selected criminal proceedings that are taking place in the national courts.¹⁹

More simply, a prominent ICTY defense attorney, Michail Wladimiroff, who defended Dušan Tadić in the first ICTY trial,²⁰ remarked that “if the states of the former Yugoslavia would properly prosecute their own perpetrators of war crimes and crimes against humanity and do so with the same quality of fair trial, there would be no need for the International Tribunal for the Former Yugoslavia.”²¹

However much the inactivity of domestic courts may have provoked the formation of ICTY, it was not designed simply to substitute for domestic courts. ICTY began to define its unique role beginning in 1998. At that time, after a series of trials of low-ranking figures like Dušan Tadić and Dražen Erdemović, ICTY adopted a policy of restricting its focus to major perpetrators. In 2000 and 2001 this became apparent (and possible) with the arraignments of some formerly senior political actors: Momčilo Krajišnik,²² Biljana Plavšić,²³ and of course Slobodan Milošević. In relation to Croatia, it filed its major indictments against generals (the two politicians most likely to be charged, Franjo Tudjman and Gojko Šušak, died in the meantime, as did Bosnian HDZ leader Mate Boban). Here the model adopted was not to substitute for domestic jurisprudence, but rather to engineer widely publicized demonstration trials, along the lines of the International Military Tribunal in Nuremberg. At the same time, although the ICTY statute foresaw “primacy” over national courts, ICTY rarely exercised this primacy in individual cases. This led to considerable leeway, as well as considerable potential for abuse, on the part of courts in Croatia and Kosovo.²⁴ In some instances referral of cases took on a political character, as it seemed that Croatia was rewarded for cooperation with the promise that cases like the Gospić case, involving violations committed by Croatian forces, would be referred to domestic jurisdiction.²⁵

In the period since the regimes whose behavior sparked the establishment of ICTY left power, the states of the former Yugoslavia have been the site of several innovations and experiments in transitional justice. Aside from the founding of the first UN tribunal, the region has seen the first regional system of special prosecutors and special courts for violations of international humanitarian law, the first invocation of “confronting the past” as a principle of conditionality, and the first efforts in the civil sector to develop cooperative approaches to reconciliation.

Since the successor states to the former Yugoslavia are nonrevolutionary states, some expectations placed on transitional justice conflicted with one another. States were expected to transform institutions that had been complicit in deeds that were now to be punished, but not to destroy them to the degree that they could not function or integrate with international organizations.²⁶ Taking the difficulties faced by the states into account, the fact that transitional justice initiatives have produced a mixed record might be less noteworthy than that they have occurred on a meaningful scale at all.

There were always compelling reasons for preferring domestic over international trials. Controversies around issues of sovereignty and perceptions of bias have led to the development of a political current that rejects ICTY, while the distance of the court’s seat in The Hague from the publics in the region has contributed to difficulties in communication. At the same time, the challenge of prosecuting such cases successfully has been understood by many in the domestic legal profession as an opportunity for prosecutors and courts to demonstrate their capacity to operate independently and contribute to a resolution of humanitarian law issues from within the country rather than without. In addition to their importance in developing local institutional capacity, several recent domestic cases have also contributed to the development of cooperative relationships between judicial and law enforcement institutions across borders, particularly between Serbia and Croatia.

When ICTY completes the trials currently before it the issue of international versus domestic prosecution will be moot: all prosecutions will be domestic.²⁷ In terms of political efficacy, local courts enjoy greater grounds for legitimacy than ad hoc tribunals, and their work is less likely to be perceived as an imposition from outside. In terms of gathering evidence and receiving accusations, too, there may be advantages of geographic proximity to victims, perpetrators, and crime scenes (these could be disadvantages in cases where witnesses might be intimidated). Since many of the most important suspects are people who played roles in domestic politics, too, domestic courts offer the possibility of trying them for both domestic and international offenses. Finally, if there is to be anything like a comprehensive approach to war crimes, a major role for national courts is inescapable simply because ICTY never had the intent or capacity to investigate and try anywhere near the number of people who could potentially be charged, nor did it ever have authority to try people for crimes not delineated in its statute.

Serbian courts entered the post-2000 period burdened with considerable difficulties. First among these was their poor reputation. The independence of the courts from political agencies was questionable in the Communist period, and worsened rather than improved during the period of nationalist authoritarianism. Both judicial personnel and judicial processes were subject to political instrumentalization. The Milošević regime frequently produced judicial decisions as political weapons: the independent newspaper Borba was shut down, the results of the 1996 and 2000 elections were overturned, and political opponents were harassed and intimidated through the courts. Judges who declined to allow their courts to be used for such purposes were fired.²⁸

Consequently judicial institutions in Serbia received consistently low measures of public confidence in surveys. A 1996 survey found 57 percent of respondents declaring lack of trust in judicial institutions, with 37 percent expressing trust.²⁹ This was less than the level of distrust displayed toward representative institutions such as the federal parliament (62 percent), the federal government (61 percent), the Serbian parliament (62 percent), the Serbian government (60 percent), and political parties (71 percent). However, among law enforcement, administrative and civic institutions, only the Serbian police (57 percent) and state-owned media (65 percent) received equal or higher ratings of distrust.³⁰ This put the judicial system on a level of public esteem comparable to that of some of the most despised and reviled institutions in Serbia.

There would have been good reason to expect levels of trust to be lower still with regard to the ability of courts to try humanitarian law cases, considering the record the Serbian judiciary compiled from 1991 onward. Particularly controversial would have been the large number of dubious convictions on terrorism charges, principally against Kosovo Albanians.³¹ The most widely publicized of these was the conviction of 143 ethnic Albanians from Djakovica, despite a lack of evidence connecting any single one of them to any terrorist acts or attempts. The presiding judge in the case, Goran Petronijević,³² admitted that there was no evidence of guilt, but justified the verdict with an interesting innovation in legal theory: “It was not possible to demonstrate individual guilt, but for the essence of the crime of terrorism that is not necessary.”³³ The precedent established by this case degraded the reputation of Serbian courts for competence to try crimes of this type, as well as presenting an inconvenience for political authorities who argued for a principled rejection of concepts of collective guilt.

The task of enabling judicial organs to function independently and capably got to a slow start after the change of regime in 2000. A record of pressure from the executive on the judicial authorities, from ordering verdicts to altering personnel, left a deep effect. The material situation of the courts was also difficult, as their budgets for office and trial space, investigation, and salaries of judges and other officials remained below levels in other parts of government. For capable attorneys, the financial compensation for judicial work could not compete with the potential rewards of private practice.³⁴ Shortly after being named to preside over the Supreme Court of Serbia, Leposava Karamarković described the situation in an address to judges:

For decades in this country the principle of utilitarianism (svrsishodnost) dominated instead of the principle of legality, and it reached its shameful height during the previous regime. Legal pragmatism occupied the place of the legal system. In pursuing its goals, the oligarchy did not want its hands to be tied by formal or abstract rules or norms. So it expressed contempt for the law and for legal form, and recognized it only to the extent that it was useful.

That led to the worst possible consequence for the legal system of any country—the legal system collapsed, fell apart, and life went on in spite of it and outside it. And so a schizophrenic reality developed in which everybody was (declaratively) in favor of legality, while everybody knew that real life was in another category, in which interests are realized, and while the existing legal system simply postulated some idealistic and unattainable relationships.

The masters of manipulation brought fear into the courtroom, ordering up not only trials but sentences as well. Judges were reduced to minimal pay and a humiliating position, probably because it was believed that it is easier to direct and rule poor people without interference.

Few judges in the legal system managed to remain upright and oppose such methods, and when somebody did, and suffered because of it, and eventually lost their job, most other judges remained silent and acted as if it was not their problem. That indicates that some of the responsibility for their current state is borne by the judges themselves, who did not react when in the dissolution of Yugoslavia cities were destroyed, people were killed and shocking ethnic cleansing was carried out.

If more judges had resisted the influence and demands of the executive branch, the results might have been different.³⁵

Even given the best of wills there existed considerable obstacles—tasks of extensive reform, replacement of personnel, and internal accounts of responsibility—before courts could take on the obligations of a credible and independent judiciary. Branislav Tapušković, president of the Society of Lawyers of Serbia, offered a pessimistic prognosis in 2001: “I am very familiar with the situation in the judiciary, I know how many people there are who have already violated many principles, and who do not deserve to be in the judiciary, but who is going to replace them? It takes at least a decade to make a good judge, and I simply cannot see how it is possible to get out of this vicious circle.”³⁶ The challenge was further complicated by the uncertain political situation: reconstructing the judiciary depended not only on the extent of the damage done by the old regime, but also on the uncertain intentions of the new one.

An early illustration of institutional competition and confusion is provided by the law federal president Vojislav Koštunica proposed in 2001 to regulate the cooperation of the Yugoslav government with ICTY. The law was intended as an alternative to direct adoption of the ICTY statute, the course eventually taken; it would have guaranteed the involvement of domestic courts in actions against people indicted by ICTY, and provided greater guarantees of the rights of indicted suspects.³⁷ Facing an unsuccessful vote, the government withdrew the law from parliament and adopted it instead as a decree. Milošević’s lawyers appealed to the Federal Constitutional Court for a ruling finding the decree unconstitutional, and on 28 June received a suspension of the decree pending a ruling. The republican government of Serbia acted quickly to circumvent judicial delay by adopting the ICTY statute, which requires suspects to be delivered to the tribunal, as domestic law.³⁸ Milošević was immediately afterward transferred to ICTY, leading to a debate (which divided the governing parties) over the legality of the act. But the legality of the constitutional court’s action was also unclear.

Shortly after the protracted legal conflict, Omer Karabeg’s radio program Most featured an exchange on the topic between Dragor Hiber, chair of the judiciary committee of the Serbian parliament, and Slobodan Samardžić, a political scientist and advisor to Koštunica. Hiber contested the court’s action:

The session of the Federal Constitutional Court held on 28 June was called by the presiding judge of that court, or a person who represented himself as such, a judge of the court, Dr. Milutin Srdić, whose term on the court ended by law two weeks earlier. When that fact became public, Srdić said, well, because the court was in need he would stay in office a bit longer, but would go into retirement anyway to maintain legality. That day he established that his term of office had ended, and so the session was called, the quicker the better, by the oldest, that is the most senior, member of the court. So two things are possible.

The first is that the Federal Constitutional Court did not know who was or was not a member of the court, which means that it was not in a condition to apply the constitution to the question of its own composition. If it cannot do that, how can it apply the constitution to any other question. The other possibility is that the court knew, but nonetheless permitted its session to be called by a self-declared presiding judge. If that is the case, then it is no longer a constitutional court, but a group of citizens with suspicious intentions.³⁹

Samardžić disagreed with Hiber’s dismissal of the court’s intervention, but nonetheless agreed that the credibility and legitimacy of judicial institutions were not clear. He argued:

To begin with, the fact is that from 5 October until now the constitutional court has not been reformed. That means that the political forces which govern this country have made a very sensitive omission. That has to be done as soon as possible, if we want to create a new legal system. The constitution is another matter. Serbia is stuck there, because in order to change its own constitution it has to wait for a new federal constitution, and that is not being created for reasons which are familiar to everybody.⁴⁰

The issue whether the Federal Constitutional Court or the Serbian government acted legally is bound to remain controversial. Regardless of this specific issue, the incident demonstrates that the new authorities in Serbia faced a situation in which the legitimacy of legal institutions and even basic legal documents remained open to debate. This offered at best an unstable framework for extensive engagement on the part of judicial institutions.

The capacity for domestic prosecution was enhanced after 2000, when the last of the wartime regimes left power. Vladimir Vukčević became the first special prosecutor for war crimes in Serbia in 2003. Bosnia-Herzegovina’s War Crimes Chamber was established in December 2004 and began work in March 2005. While the Croatian parliament had made a declaration on the legitimacy of the state’s military efforts in 2000,⁴¹ in response to pressure from the European Union special war crimes chambers were designated and the first cases began to be referred to them in 2005.

Throughout the region credible domestic prosecution started slowly. Early prosecutions in Croatia had been widely perceived as being selective.⁴² With the establishment of special chambers major cases began to be tried on a larger scale by domestic legal institutions, with a shift away from a balance that favored prosecutions of Croatian Serbs for violations committed as members of rebellious paramilitary forces, and an increasing number of cases involving violations by Croat forces against civilians. The periodic OSCE report raised concern about systematic bias as late as 2006.⁴³ But dramatic instances of impunity in Croatia, including the longstanding untouchable status of such former paramilitary commanders as Tomislav Merčep and Branimir Glavaš, began to be aggressively addressed following the accession of Ivo Josipović to the presidency in 2010.⁴⁴ Nonetheless, concern remains that many cases that could be referred to the specialized war crimes chamber remain instead in the regular courts.

The special chamber for war crimes was established in Bosnia-Herzegovina in 2005, and 122 cases had begun to be heard by 2009.⁴⁵ The number of cases hardly corresponds, and probably never can do so, to the number of people who could potentially be charged with offences. Some barriers to prosecution were imposed by basic political structures like the Dayton Peace Agreement, while there are also persistent issues of jurisdiction arising from the simultaneous operation of three different judicial systems, as well as from ongoing confusion as to whether the applicable law derives from the Criminal Code of Yugoslavia, which was in force at the time of the conflict, or from the Criminal Code of Bosnia-Herzegovina, which addresses issues of war crimes in greater detail but did not come into force until 2003.⁴⁶

Serbia faces both a large number of cases and large challenges to prosecuting them. Some of the most prominent war crimes prosecutions since 2000 have involved the members of the “Scorpions” paramilitary group, members of which were convicted and sentenced in 2005 for a massacre of ethnic Albanian civilians in Podujevo, and in 2007 for participation in the Srebrenica genocide.⁴⁷ The Scorpions cases crucially involve the role of military and state security services in the supply, organization and command of paramilitary forces—an issue highlighted by nongovernmental advocacy groups that participated in the cases. Efforts to try the perpetrators of the Ovčara massacre near Vukovar in 1991 failed. A conviction with harsh sentences was rendered in 2005, though this was subsequently overturned. The last word in the case was thereby forfeited by Serbian courts and fell to ICTY, which convicted two of the main suspects in the massacre and released a third.⁴⁸