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Chapter 1

Guilt and Responsibility: Problems, History, and Law

The International Criminal Tribunal for the former Yugoslavia (ICTY) issued its final indictments in 2004, and these were confirmed in 2005.¹ The remainder of the Tribunal’s activity consists in completing cases that have already begun and preparing for cases that have yet to begin. Prosecution is still being prepared against Ratko Mladić and Goran Hadžić, who were apprehended in 2011. In November 2008 the president and prosecutor of the Tribunal anticipated, provisionally, that trials should be completed in 2010 and appeals completed in 2011.² Clearly this did not happen, and the ICTY completion strategy is likely to be revised to 2015 or possibly later.

By some accounts the success or failure of ICTY will be measured in legal terms: did it adhere to fair procedure, generate evidence of unassailable quality, and establish precedents that offer a foundation for the future application of international humanitarian law? By some accounts its success or failure will be evaluated numerically: were enough people charged with crimes, did a sufficient proportion of crimes result in charges, and were indictments fairly distributed among members all the groups that participated in the wars? By some accounts its success or failure will be assessed politically: did it encourage the promotion of peace, the development of democratic states, and the elimination of conditions that could lead to large-scale violation of international humanitarian law in the future?

It will be far more difficult to evaluate ICTY in social or (to use a pretentious word) moral terms. Such an evaluation would certainly require multiple levels of analysis. Nonetheless no assessment of the effort would be complete without at least attempting such an analysis. The Security Council resolution that established the Tribunal suggests such a standard:

Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of “ethnic cleansing,” including for the acquisition and the holding of territory,

Determining that this situation continues to constitute a threat to international peace and security,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,

Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace,

Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed.³

By its declared goals, then, ICTY ought to restore and maintain peace and security while also halting crimes and effectively redressing them. The standards for evaluation therefore have to be broader than technically legal or strategically political criteria. They have to take into account what would constitute maintaining peace and security and redressing crimes, while also considering how the recurrence of crimes can be prevented. To assess this legal institution we have to ask social questions.

The principal social question I ask is how the conflicts and the crimes committed in the course of them came to be understood by people in Serbia. This study examines the legacy that confronted the country when Slobodan Milošević was compelled to leave power in October 2000, the institutional and informal efforts to create an account of this legacy, and asks how ICTY and related institutions interacted with other forces in the process of building a set of public memories (some of which were widely shared, while some were confined to relatively well-defined groups).

The field of public memory is diverse and broad. Considerable variation exists in just how “public” elements of public memory are. No study of public memory can hope to be either final or exhaustive: as people’s perceptions and conditions change, public memory changes with them. This study traces the development of public memory: how it changes over time, how far change reaches, and what might account for change.

I am particularly interested in answers to questions of guilt and responsibility, emphasizing how people answered two questions in particular: (1) Who should be blamed for all the misery that took place? (2) Who is obliged to find ways of repairing damage where necessary, rebuilding relationships where demanded, and assuring a peaceful future where possible?

Framing the Question

The issue of guilt and responsibility in contemporary Serbia involves generating persuasive historical accounts, which are likely to be generally accepted, that establish what happened in the recent past and which individuals, institutions, or forces are responsible. The wars of succession that followed the dissolution of Yugoslavia in 1991 were a source of trauma for residents of the region and also a topic of global political controversy.⁴ Both the trauma and the controversy derive from the same source: the commission of war crimes,⁵ crimes against humanity,⁶ and genocide,⁷ in the course of the wars. Consequently the challenge of generating historical accounts carries a political burden. Historical accounts are expected to help in determining who is guilty, how social responsibility is to be distributed, and how peace and reconciliation can be developed. Neighboring countries and international institutions take an interest in this process—they will measure the progress of the country according to how far public opinion in Serbia is willing to accommodate the grievances of its recent enemies and break with its recent past.⁸

This challenge would already be difficult enough were it not for some unique problems: a historical problem, a problem of balance, and a problem of precedence of jurisdiction.

When Does the Past Begin?

If it is necessary to break with the past, when does the past that needs to be rejected begin? This question is particularly sensitive in the former Yugoslavia, since the instrumentalization of historical memory played an important role in the mobilization of nationalist sentiment and, eventually, nationalist violence. Four answers are most commonly offered.

1. Resolution of guilt from World War II (1941–1945). The war saw on the territory of Yugoslavia an international war between Allied and Axis powers, a guerrilla war between Partisan and occupation forces, and a civil war between Partisan communists, Croatian Ustaše, and Serbian Četnici (including a number of subordinate, smaller, and some forgotten forces).⁹ In addition to severe war-related damage, this period saw genocide committed by the Ustaša regime in Croatia,¹⁰ massacres of Croatian prisoners of war by the Partisans,¹¹ and numerous crimes against civilians by all forces. The postwar Yugoslavian government never seriously investigated or confronted these crimes, and debating them was treated as taboo throughout the Communist period.¹² A strong case can be made that among the factors that made nationalist mobilization possible in the last years of SFRJ was the continually unresolved problem of guilt, and hence unsettled grievances, from World War II.¹³

2. Grievances from the Communist period (1945–1990). Although the Yugoslav Communist regime was less repressive than other European Communist regimes, especially after 1965, there nevertheless remain serious grievances against it. These include grievances involving expropriation of property, forced resettlement (including expulsion of ethnic Germans and Italians), arrest and imprisonment of political opponents, and abrogation of political and civil rights. The largest-scale act of repression was the imprisonment of pro-Soviet Communists after the break with the Soviet Union in 1948.¹⁴ Though not as dramatic or violent, a case can be made that the potential of Yugoslavia to become a democratic state was severely hampered by the marginalization of the “liberals” from the Communist hierarchy after 1972.¹⁵ The wars that followed the breakup of SFRJ in 1991 directed attention away from these events, meaning that issues arising from the Communist period have never been comprehensively addressed. Other former Communist countries have approached these questions through a variety of means, including “rehabilitation” of former political opponents, restoration of expropriated property, and restrictions on political rights of former domestic intelligence and security officers (“lustration”).

3. Determination of responsibility for the breakup of SFRJ (1980–1992). Over the past decade there has been considerable debate on this theme,¹⁶ and when Vojislav Koštunica named his ill-fated Commission for Truth and Reconciliation,¹⁷ in 2001, it was posed as one of the themes for the commission to address. Legal and political issues are at stake in this debate. Namely, if one accepts the position that SFRJ was a state broken apart by secession, then the wars would have to be regarded as civil wars over minority rights and the distribution of territory. If one accepts the position that SFRJ dissolved into its federal elements and ceased to exist, then the wars would have to be regarded as international conflicts assisted by Serbia. This issue is, of course, while possibly relevant to questions of the criminal accountability of states and the applicability of international agreements,¹⁸ not relevant to questions of individual accountability for crimes.

4. Addressing crimes of the wars of succession (1991–present). The conduct of the wars of succession shocked many, as the wars produced the greatest numbers of deaths, refugees, and incidents of violent abuse seen in Europe since 1945. In most cases, justification for atrocities was offered by nationalist programs seeking control of territory, and in many cases establishing control of territory involved killing, intimidating, and forcibly moving local residents. At the same time, rigid control of public information led to a situation in which even now many people say they are not well informed about the wars. Feelings of guilt, victimization, and resentment are widespread, and are very likely intensified by the failure to produce reliable accounts. Establishing facts and taking appropriate legal action are widely viewed as necessary to put a symbolic end to the atmosphere of war.

The wars of succession take priority for most international observers. The other three variants, while important in their own right, can be read in this context as distractions or signs of ideological obsession. Nonetheless, all the levels of concern enumerated here are very much alive in public debate throughout the former Yugoslavia. Sometimes the themes are raised in a transparently instrumental way, as with efforts in Serbia to document the collaboration of other ethnic groups in World War II, or efforts in Croatia to demonstrate that the Yugoslav federation always operated to Croatia’s disadvantage. But the interrelation of these issues is clear, as one set of unresolved grievances feeds into subsequent conflicts.

The Question of Balance

War crimes, crimes against humanity, and acts of genocide were committed by ethnic Serbs, in the name of Serbian interests or the Serbian state, with the involvement of Serbian institutions, and with some degree of support (how much is an object of controversy) from Serbian people. These crimes are generally regarded as constituting the majority of crimes committed in the wars of Yugoslavian succession.¹⁹ The accounts and responses provoked by these crimes constitute the bulk of material of this study.

However, these crimes were not the only crimes committed during the wars. Corresponding with feelings of guilt and responsibility in Serbia are senses of grievance and victimization. At least 200,000 Serbs were forced to emigrate from Croatia after the reconquest of the self-declared RSK in 1995. Almost as many were forced to leave Kosovo in the period after the signing of the Kumanovo agreement in 1999, and violence against the Serb population remains a concern.²⁰ Serbs were victims of massacres, inmates of prison camps (for example, Čelebići),²¹ and objects of forced migration during the wars. When Serbian politicians complain that these instances are investigated and prosecuted less intensively than crimes committed by Serbian forces, their complaints resonate in domestic public opinion. ICTY declined to pursue charges against NATO for bomb strikes against civilian targets in 1999, while charges against the Bosnian Muslim authorities for abuses and killings perpetrated against the Serb population in Sarajevo during the war remain uninvestigated. Weak prosecutions against Bosnian militia commander Naser Orić (convicted of minor charges and sentenced to time served, then acquitted on appeal), or the Kosovo politician Ramush Haradinaj (acquitted after a series of incidents of witness intimidation),²² also contributed to a sense of imbalance.

An emphasis on crimes committed “in the other direction” might be thought of as an exercise in comparative victimization, functioning as a type of avoidance or denial. This study is concerned with internal discourses rather than comparative victimization. While at some point it will be essential for citizens of all the countries of the former Yugoslavia to generate, through discussion, debate, and research, an account that recognizes all the crimes committed in the name of various “national” interests and identities, a necessary condition for this to occur is that people in each of those countries reach something like a consensus about their own responsibility. For accounts to be compared externally, internal accounts have to have already been developed.

The Problem of Precedence

In all the former Yugoslav states involved in armed conflict, concurrent struggles were taking place. One involved armed forces and paramilitaries fighting one another while simultaneously, often, committing crimes against the civilian population. Another involved the nationalist-authoritarian regimes of these states abusing their power through corruption, repression, and some crimes against domestic political opponents—broadly put, wars of states against the societies they claimed to represent. These struggles were sometimes violent, but usually carried out by administrative and cultural means.²³ Now that the regimes that carried out these struggles are for the most part out of power,²⁴ the question whether international or domestic crimes should receive priority is a matter of recurrent controversy. Crucially relating to the question of trials and extraditions, there is a sense that given constraints of time, domestic trials might preclude international ones, and vice versa.

Violations of International Law

Most international interest concentrates on the commission of war crimes and crimes against humanity in the wars of succession from 1991 onward. This is reflected in the founding of ICTY, the one international institution most involved in investigating and prosecuting these crimes. It is also reflected in the subsequent founding of special courts and prosecutors for war crimes in the countries of the former Yugoslavia.²⁵

ICTY is obligated by its statute to investigate and prosecute three types of offenses: war crimes, crimes against humanity,²⁶ and genocide. The UN resolution that established the Tribunal sets forth as its principal goals “to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,” and also to “contribute to the restoration and maintenance of peace.”²⁷

When Slobodan Milošević was arrested in April 2001, there existed an international charge for war crimes and crimes against humanity against him and four other political and military leaders of Serbia in connection with one incident—a massacre of civilians in the Kosovo town of Račak (Reçak) in January 1999. After his arrest the indictment against him was revised to include charges of genocide. Charges of genocide were filed against a number of wartime political and military leaders of the Serb entity in Bosnia-Herzegovina,²⁸ but have not been applied to the leadership of the Serbian regime with the exception of Milošević.²⁹

Political leaders from the war period may have believed that they could escape prosecution and persuade the public that their crimes were, if not themselves legitimate, committed in a context that made them retrospectively legitimate. Such a conclusion is suggested by the behavior of Milošević on his arrest in 2001. At that moment both international and domestic prosecutors discussed the possibility of wide-ranging charges being laid against him. But the only charges that had actually been filed were ICTY’s charges for the Račak massacre and a set of domestic charges for abuse of an official position for political power and personal gain. Milošević himself opened the door to new domestic and international war crimes charges in an appeal filed shortly after his arrest The appeal denies diverting money from the state budget for personal gain, claiming instead that any diverted money was secretly used to finance paramilitaries in Bosnia-Herzegovina and Croatia and to supply SRJ state security services.³⁰ This constituted an invitation for questions about direct connections between his regime and the organizations that had proximate responsibility for international crimes to be brought into the legal procedures against Milošević. Milošević’s appeal claimed a level of state involvement that he had always denied while he was in power, with implications both for the character of the “joint criminal enterprise” to violate international humanitarian law and for the civil suits brought by Croatia and Bosnia-Herzegovina against SRJ.

In terms of criminal liability under international law, the incidents of greatest interest are the following:

1. Massacres of the civilian population. The largest massacre occurred in Srebrenica in 1995, when forces under the command of Bosnian Serb general Ratko Mladić, after conquering the town, rounded up and murdered at least 7,000 residents. Three military officers have also been charged with the massacre of about 300 civilians who took refuge in a hospital outside Vukovar in Croatia in 1991. They were tried and retried several times in domestic courts before a verdict was reached by ICTY, while a local politician accused of complicity in the massacre committed suicide in prison in 1998.

2. War against civilian populations. Several cities were besieged during the wars, the best-known cases being Vukovar, which was almost completely demolished by bombing in 1991, and Sarajevo, which was the object of constant sniper and missile attacks between 1992 and 1995. Attacks not demonstrably related to any military objective were made against other cities, including Tuzla and Dubrovnik, as well. Charges of this nature can also be applied for less concentrated and smaller-scale incidents, such as destruction of property after taking a territory or with the goal of intimidating residents of an area.

3. Measures designed to forcibly change the ethnic structure of a local population. These include forced resettlement, intimidation, imprisonment, and also murder. All these means were used to force members of different ethnic groups to relocate, creating monoethnic territories, especially in Bosnia-Herzegovina in 1992–1993, in Croatia in 1995, and in Kosovo by one side in 1999, and by another side afterward. These are the actions for which the distasteful, imprecise, and distressingly widespread term “ethnic cleansing” was invented.³¹

4. Murder, rape, and torture of prisoners. Several prison and relocation camps in Bosnia-Herzegovina became known for the abuse of prisoners, and some of these have already become the subject of prosecutions. The ICTY’s earliest, largest, and most complex cases included prosecutions against people suspected of abuses at the KP Dom Foča, Omarska, Trnopolje, and Keraterm camps. In one of the first cases to be prosecuted against Bosnian Muslim forces, three people were convicted of murder and war crimes (but not crimes against humanity) in connection with atrocities at the Čelebići camp in 1992.

Violations of Domestic Law

Especially in the months just following the removal of Milošević from power in 2000, considerable attention was paid to revelations regarding abuses of power for personal and financial gain. These included the distribution of state property in the form of luxurious houses and apartments, manipulation of the banking and currency exchange systems, and corruption in connection with the sale and privatization of state-owned corporations. Charges concentrated heavily on a few figures who are widely considered to have been the main exponents of regime corruption: former premier Mirko Marjanović,³² former deputy premier Nikola Šainović,³³ former customs director Mihalj Kertesz,³⁴ and others.³⁵ A few cases went to trial: Kertesz was tried for diverting public funds through offshore banks, and the Karić brothers, who built a business, banking, and media empire through regime patronage, were eventually compelled to leave the country. Milošević’s wife Mirjana Marković was charged, together with her daughter Marija, with minor real estate offenses (as she has been in hiding she has not formally answered the charges).³⁶ Like other charges not directly related to acts of violence, it is entirely possible that behind the prosecutions and threats of prosecutions may lie other motives: either to assure compliance or to persuade the accused profiteers to give evidence against more important figures, perhaps for more serious crimes. Over time, the impressive corruption of succeeding regimes has come cumulatively to present a barrier to prosecution of cases of this type.

Members of the regime also conspired to falsify election results, the most controversial being the local elections of November 1996 and the presidential and parliamentary elections of September 2000. Both elections were followed by massive protests. After the 1996 elections, the regime was forced to pass a “special law” recognizing the results, which it had earlier declared invalid when it discovered the opposition had won. In 2000, the regime tried first to declare victory, then to force a second round, and finally to nullify the election results. This effort was stopped by massive protests in October 2000, which forced Milošević to resign.

Among the most widely publicized acts of domestic political violence in the Milošević regime are the murder of newspaper editor SlavkoĆuruvija in 1999,³⁷ the attempted murder of politician Vuk Drašković (four people were killed in the attempt) in 1999,³⁸ the murder of organized crime figure Željko Ražnatovic-Arkan in 2000,³⁹ and the kidnapping and murder of former president Ivan Stambolić⁴⁰ in 2000. In addition to these, attention is occasionally drawn to several acts of ethnic violence committed or organized within the borders of Serbia: the kidnapping and murder of nineteen ethnic Muslim passengers from the Belgrade-Bar railway at Štrpci in 1993,⁴¹ the intimidation and expulsion of ethnic Croatian residents of the village of Hrtkovci in 1992,⁴² and the kidnapping and murder of seventeen ethnic Muslim passengers from a bus in the village of Sjeverin in 1992.⁴³

All the crimes ICTY can prosecute are also crimes under the Criminal Code of Serbia. The domestic Criminal Code also includes some charges ICTY does not have the authority to level, such as promoting ethnic and religious hatred, aggression, and crimes against peace.⁴⁴ Charges of “provoking public danger” were applied against Dragoljub Milanović, former director of Radio-Television Serbia, for failing to remove his employees from RTS headquarters when it was bombed in 1999.⁴⁵

The various elements of corruption, fraud, theft, and violence could possibly to be tied together into a wide-ranging charge of conspiracy—defining the parties in power during the Milošević regime and their associates as constituting a criminal organization responsible for corruption, fraud, political violence, and war crimes. While accountability for war crimes in Kosovo that were committed by police and military forces falls under direct chain of command, accountability for similar crimes in Croatia and Bosnia-Herzegovina might be limited to financing the organizations that committed them,⁴⁶ unless evidence of more direct connections is revealed.⁴⁷

There may indeed exist a temptation to consider conspiracy prosecutions of this sort, not least because it seems obvious that the regime’s domestic and international abuses were linked. However, the (limited) previous experience of using conspiracy theories in international trials has been mixed. The International Military Tribunal at Nuremberg rejected conspiracy as a basis of prosecution. But conspiracy was the principal basis of prosecution at the Tokyo Tribunal. This led to some convictions that could easily be considered miscarriages of justice. For example, Hirota Koki was sentenced to death for conspiracy to wage aggressive war on the basis of his membership in Japan’s Cabinet (foreign minister between 1933 and 1936, prime minister in 1936 and 1937, and foreign minister again in 1937 and 1938), and despite the fact that as a politician he opposed the actions for which he was prosecuted. Similarly, General Yamashita Tomoyuki was sentenced to death for atrocities committed by troops under his command in the Philippines in 1944, despite convincing evidence that he neither knew about the atrocities nor was able to communicate with his troops at the time. The same standard was applied against Generals Kimura Heitaro and Muto Akira, who were also sentenced to death.⁴⁸ The Tokyo Tribunal’s use of conspiracy as a basis of prosecution undoubtedly led to great efficiency in the prosecution and conviction of suspects. But this efficiency came at the cost of the Tribunal’s credibility, and probably did much to prevent serious public engagement with issues of responsibility in Japan.

A further obstacle to wide-ranging prosecution of figures from the Milošević regime in Serbia is that the regime never entirely left power. In June 2008, following parliamentary elections that produced a protracted coalition crisis, the party formerly chaired by Milošević joined the governing coalition led by the Democratic Party. A number of figures from the Milošević period found themselves occupying high public office again. The leaders of the parties sought for a time to portray the coalition as a sign of reconciliation between the opposed forces of the previous decade.⁴⁹

Why Establish Anyone’s Guilt?

The smell of corpses from the freezer truck found at Tekija, buried long ago in the capital city, is spreading through Serbian public space and offers a shocking reminder of what everybody who had a grain of conscience in this country already knew: war crimes were committed (also) in Kosovo. They were not incidents, but official policy, the realization of which included the leading figures of the military-police establishment. Their Rashomon over the last week demonstrates that (yet) another horrifying neologism—“reclamation of the terrain” [asanacija terena]—was the work of the state, like the killing.⁵⁰

The investigations and arrests of leading figures from the Milošević regime, including Milošević himself, marked a turning point brought about by a combination of forces, including public opinion, international pressure, and the early actions of the post-2000 Serbian government. Another turning point came about through a combination of chance and orchestration, in the interaction between silenced local knowledge, a minor local media outlet, and a window of opportunity. Information became public about an incident in 1999, when a local resident witnessed a freezer truck being pushed into the Danube River near the eastern Serbian town of Tekija. A diver engaged to investigate found the truck; police opened it to find it full of human corpses. The interior ministry instructed the police not to investigate, warned prosecutors that a “state secret” was in question, and ordered the bodies to be removed and destroyed or hidden in another place.⁵¹ The truck itself was destroyed by police at Petrovo Selo.⁵² While many local people certainly knew about the freezer truck,⁵³ police did not investigate and media did not report the incident until two years later, when an article in the local Timočka krimi revija (Timok Crime Review) was picked up by national, and eventually international, media. Not long after, police began to release information about a program to destroy evidence of massacres in Kosovo, under the code name “Depths 2,”⁵⁴ and to declare that evidence traced the program directly to the commanders of the police and military and to Slobodan Milošević personally. Over the next month, more burial sites of massacre victims were “discovered.”

If the case were only a question of establishing that massacres took place and that evidence was destroyed, its main significance would be legal. Probably its principal legal effect in Serbia was to force prosecutors to begin reconsidering the decision not to charge Milošević and his associates with war-related crimes (otherwise there was a distinct political preference for less controversial corruption charges). It may well have compelled the government to consider the domestic capacity to try such cases and opt for ICTY’s capacity instead.

The main significance of the case, though, probably lay in the way it brought war crimes into public discussion. As the investigation began, interior minister Dušan Mihajlović declared, “I think that this case will give a completely different picture of our so-called patriots.”⁵⁵ The popular commentator Stojan Cerović, who had been arguing in his weekly column against cooperation with ICTY in the preceding months, dramatically revised his assessment:

If we want to avoid the Hague Tribunal, the reason can absolutely not be that we do not believe that crimes were committed—because we can see the evidence swimming to the surface—nor that we think we have some justification—like that other people did the same thing—because we do not believe those justifications ourselves. What I mean is that, to the extent that we have any kind of moral sensibility at all, it is not possible to paper this sort of thing over, even if no earthly judge were ever to find out about it….

If in this case we do not find the guilty parties and do not think about their punishment, then no court in the world, not even The Hague, can help us. It would mean we as a society have already been punished by being sent back to Edenic moral idiocy [beslovesnost]. Or if you prefer local mythology, it would mean that we have lost both of the kingdoms mentioned in relation to Kosovo.⁵⁶

It appeared briefly that the “freezer truck case” might be the incident that would finally make denial of crimes impossible, finally make the connection between the Milošević regime and the crimes obvious, and force public examination of responsibility to begin. This would have meant that the first half of 2001 would have seen the arrest of Milošević, marking the break with the period in which his authority was feared, and the “freezer truck case,” marking the break with the period of reflexive denial. Instead this case became simply the first of several that seemed to signal a major turning point, in which initial publicity offered the possibility that new recognitions would spur a new type of public discussion, but in which shock turned into relativization, and relativization to a space between silence and denial. A similar pattern would recur after the extradition of Milošević, the murder of prime minister Zoran Djindjić, and the release of the “Scorpions” film showing paramilitary units participating in the Srebrenica killings. Once the freezer truck was out of the river, more information could flow, but the currents remained complex.

A debate ensued about who should be prosecuted in the “freezer truck case.” A rhetorical war began to be fought between the police and the military, mostly in the form of alternating statements to the press, about whether spokespeople for any one force had accused the other force of involvement. Government spokespeople mentioned the case when arguing in favor of cooperation with ICTY, especially in June 2001 when the issue of a law regulating cooperation began to divide the parties that made up the federal government. Whether because of the revelations from Tekija or other factors (such as the conditional character of financial assistance), talk of both domestic and international prosecution began to sound more normal after the revelations. In fact no domestic prosecutions arose from the case, and it featured only briefly during the presentation of evidence against Milošević during his inconclusive trial before ICTY.

But prosecution and the willingness to prosecute do not tell not the whole story. Both the people who advocated legal action and the people who resisted it might be described as acting from the same motivation: a belief that regardless of what person or people might be charged, the result of any trial would reflect somehow on other members of the social collective, and have repercussions on senses of self and feelings of identity. At stake then is no longer just the guilt of war criminals, but the feelings of responsibility held by the people around them. By imposing the question of guilt, the “freezer truck case” raised, for many people for the first time, the question of responsibility.

The Difference Between Guilt and Responsibility

One of the frequently stated goals of confronting the recent past is to assure that the events that marked it will not be repeated. This effort requires asking questions that go deeper than the investigations required for criminal prosecution. The principal questions deal with causes: how was an environment maintained that made the commission of crimes possible? Generating answers to these questions requires research into social and political history, but also demands uncomfortable self-interrogation. Was the ideological justification that legitimated criminal activity widely shared? To what extent did people acquiesce to the regime that was responsible for these crimes? How widespread was knowledge about crimes and their perpetrators? Did citizens have the capacity to change the regime or its policy?

The questions engage acts and positions for which people might feel responsible but not guilty—they are not criminal acts. These generally relate less to public or widely consequential interventions by people or institutions, and more to questions individuals might pose to themselves about how they experienced the period of dictatorship and war, and about whether their approach to this experience allowed them to maintain an understanding of themselves as uncompromised and morally responsible.

Approaching responsibility in these terms involves constructing an understanding of the recent past. Arguing why Milošević should be tried domestically, Prime Minister Djindjić remarked, “We have to reconstruct our own past through this legal process, because not only is Milošević a part of our past, but so are we, and because Milošević would not have become what he is without us.”⁵⁷ Understanding the recent past implies not only rendering causes and conditions narratively, but also interrogating the role of social groups and individuals in the experience of traumatic events. Politicians have borrowed the word “catharsis” from the psychological literature to describe this social process.⁵⁸

Almost all domestic and international discourse has revolved around questions of guilt and how or whether guilty people will be punished. It is also necessary to broaden the discussion beyond this certainly moral but mostly practical theme. Guilt needs to be addressed but so does responsibility. The remainder of this chapter offers brief definitions and discussions of these two concepts, various dimensions of which are explored in detail in the rest of the book.

Guilt: A Legal Category

Legal trials are concerned with the guilt of perpetrators of crimes, seeking to document and punish it. In these institutional settings guilt is a legal concept,⁵⁹ whereby a person can be defined as guilty if he or she can be shown have done something illegal.⁶⁰ The definition is accomplished on the basis of evidence tying the person to the act, and findings of guilt are factual findings; they have nothing to do with how the person might feel about having committed the act. The Oxford Companion to Law offers the following definition: “Guilt. The concept of having committed some failure of duty, usually a crime or offence, and consequently being liable to some penalty. A person accused may admit guilt, or be found guilty on the evidence. In the case of common law crimes guilt normally coincides with having committed moral fault, but in the case of some statutory offences guilt may arise by merely having done something or allowed it to happen without moral fault at all.”⁶¹ The scope of guilt is conceptually limited. Only a person who has committed a violation can be regarded as being guilty.⁶² This also extends to considering potential guilt: only individuals can be tried and eventually convicted. The idea that a society or a political collective might be guilty, appears in political rhetoric but makes no sense as a legal idea. The political notion of collective guilt also has several obvious theoretical shortcomings. Probably not the least of these is the inclination to impose a false collectivity that erases social and political differences. At a minimum this approach is offensive to diverse people within collectives, while at worst it can constitute a sort of self-fulfilling prophecy that encourages people to identify with criminals because they share an ethnic background.

Responsibility: Individual, Collective, Political

If problems posed by guilt are legal and technical, problems posed by responsibility are social and moral. Conceptions of collective guilt function, if they function at all, as invitations to reflection on responsibility. Here it is important to maintain the conceptual distinction, rather than treating responsibility, as popular rhetoric often does, as a sort of “guilt lite.”

Karl Jaspers offers some of the most useful guidance on this question, and most of the discussion here relies on his discussion of guilt and responsibility. His post-World War II reflection The Question of Guilt begins by confronting the widespread sense that Germany as a whole shared guilt for the crimes of the Nazi regime, which were only beginning to be widely publicized when he wrote the book.⁶³ Jaspers distinguished between the stigma placed on Germany from outside and the task that confronted it from inside: “the fact that the victors declare us to be guilty is a political fact with the widest possible consequences for our lives, but it does not help us in the most important task, with our internal transformation.”⁶⁴ Jaspers echoes the distinction noted by H. D. Lewis, who in his entry on “Guilt” in The Encyclopedia of Philosophy notes, “We may in any case be morally guilty and legally innocent—and vice versa.”⁶⁵ Here I draw on that insight to separate legal culpability from moral responsibility, so that both can be observed without confusing the two.

Jaspers distinguishes legal guilt from three other forms:

1. Political guilt. The concept of political responsibility represents a factual state, in which all citizens of a state collectively bear the consequences of political decisions made by the state. This relationship of cause and effect operates regardless of whether these citizens supported the political decisions made by the state: my views on tax policy may not be the same as those of the majority of legislators, but this does not change my tax obligations. The concept of political responsibility also postulates a (varying) degree of moral participation. Jaspers asks rhetorically: “Do we Germans have to be held responsible for offenses which other Germans committed against us or which we managed somehow to miraculously escape? Yes—to the extent that we permitted that sort of regime to exist in our country. No—to the extent that many of us with the deepest conviction opposed that evil and did nothing which would cause us to recognize moral complicity with it. Demonstrating somebody’s responsibility does not mean demonstrating that person’s moral guilt.” Political responsibility applies to all people whose “lives are carried out within the framework of the state.” Jaspers recognizes that some “completely apolitical” people might be excluded from this category, but construes the privilege of being apolitical to apply only to narrowly defined groups whose existence takes place outside the political sphere, such as monks.⁶⁶

2. Moral guilt. This category refines the legal concept of command responsibility, which dictates that a greater degree of guilt applies to an officer or politician who issues an illegal order than to a soldier or official who complies. By contrast, Jaspers argues: “I carry moral responsibility for all of my actions as an individual, as for all of my other actions, including the carrying out of political and military orders. The simple principle that ‘an order is an order’ never applies. A crime is still a crime even when it is committed on orders.” Jaspers casts moral responsibility not as a legal issue but as an issue of the conscience of the individual, specifying that “everybody has to decide how to judge himself, but since communication exists, we can discuss these things among ourselves and help each other to achieve a clear moral self-recognition.” He identifies the environments in which to draw conclusions about moral responsibility as “my own conscience and communication with friends and people close to me who out of love are concerned for my soul.”⁶⁷ Individualization of moral guilt, for Jaspers, does not diminish the obligation all people have to interrogate their own false declarations of loyalty, beliefs in the legitimacy of the regime that committed offenses, and personal compromises.

3. Metaphysical guilt. Jaspers begins his discussion of this category by postulating, “Solidarity exists between people as members of the human race, which makes everybody co-responsible for all injustice and unfairness in the world, and especially for crimes committed with their knowledge or in their presence.” This form of responsibility, while diffuse and not easily expressed in terms of law, politics, or morality, is fundamental, since “if people did not have any kind of metaphysical guilt, they would be angels, and the other concepts of guilt would have no content.” The feeling of metaphysical guilt produced by knowledge of crime “destroys the absolute solidarity of people with one another.”⁶⁸ It can be understood as a universal feeling that interferes with a person’s conception of self as fully human.

To avoid confusion, it may be appropriate to consider the latter three forms proposed by Jaspers not as variations of guilt but as varieties of responsibility. Jaspers uses a different terminology, but implies the distinction in specifying instances for each form: for criminal liability a court, for political guilt force and the will of the victor, for moral guilt the individual conscience, and for metaphysical guilt God.⁶⁹ Herein the term “guilt” refers to a specific status defined by a judicial institution. The term “responsibility” refers to states of feeling or judgment operating on the level of relationships, perceptions, and individual self-assessment.

Concepts of collective guilt make little sense from any point of view. As Lewis points out, “If guilt, in the proper sense, turns on deliberate wrong-doing, it seems that no one can be guilty for the act of another person—there can be no shared or collective or universal guilt.”⁷⁰ At its worst, collective guilt recapitulates the nationalist collectivism that produced an environment conducive to crime. But the question of collective responsibility may not be so clear cut. Following Jaspers, at least one form of collective responsibility, “metaphysical guilt,” is common to every person. We do not have to share his mysticism to understand feelings of responsibility as functioning partly on the level of the individual, and partly in the context of identities and relationships. In this sense responsibility has to do with our sense of who we are, our sense of one another, and people’s sense of us. Collective perceptions and feelings are involved at all these levels.

Some wordplay might help to illustrate how responsibility is distinct from guilt. The first part of the word is “response.” In his essay on “responsibility” in the Hastings Encyclopaedia of Religion and Ethics, David Fyffe invents the synonym “answerableness.”⁷¹ The rhetorical figure works in Serbo-Croatian as well: the root of odgovornost (responsibility) is odgovor (answer). Here responsibility is taken to mean the ability to respond—in the sense that there is a need for answers and an effort to produce answers.

This study approaches various aspects of the effort to establish guilt and address responsibility. It moves from an examination of initial states of public opinion in Serbia to an exploration of some of the first “moments” when it appeared that a wide-ranging dialogue might begin. The discussion is structured to move from detailed examination of “moments” to theoretical and contextual analysis that tries to answer the question of why some incidents turned out the way they did. Then several “nonmoments” are examined, in which positions and understandings remained in place despite events. The picture that emerges is one of a social process begun but not completed, with divisions and contested understandings remaining. The conclusion suggests some explanations for this mixed state of events and proposes some possible means of moving forward.