Addressing War Crimes

Yugoslavia fell apart in stages, and violence accompanied each of these stages. The first war was brief, a ten-day standoff between the Yugoslav Army and Slovenian forces in the summer of 1991, and there were few casualties. The Milosevic government in Serbia was not happy with Slovenia’s secession, but the Serbian population there was miniscule and the two sides didn’t share any adjoining territory.

The next war, over Croatia’s independence, was considerably more brutal. Between 1991 and 1995, the Yugoslav Army and Serbian paramilitaries occupied sections of Croatia. In mid-1995, the Croatian army reclaimed this territory, pushing out the Yugoslav Army and expelling many of the ethnic Serbs who had been living there for generations. Overlapping with this conflict, from 1992 to 1995, the Serbian and Croatian leaderships along with their respective paramilitaries sought to carve territory out of a newly independent Bosnia. An agreement signed in Dayton, Ohio brought an end to the fighting. The fourth and final major war, between Serbia and the breakaway territory of Kosovo, took place between 1998 and 1999. The terms of Kosovo’s independence are still being worked out 15 years later.

These four wars generated a huge number of civilian casualties, human rights violations, and war crimes. To assess these crimes and determine culpability, even as the wars continued to rage, the United Nations established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993. It was the first war crimes tribunal since the end of World War II.

Over the last 20 years, the ICTY assembled an vast amount of documentation, charged more than 160 individuals, and convicted 69 people, including politicians and military personnel from all parts of former Yugoslavia. It hasn’t wrapped up its work yet. Serbian politician Vojislav Seselj was detained in 2003, and his trial is currently ongoing. The trials of Radovan Karadzic and Ratko Mladic are not expected to finish until 2015 and 2016 respectively.

Predrag Dojcinovic began working in the linguistic, analytical, and research section of the Office of the Prosecutor at the ICTY in 1998. His background is in philosophy and linguistics, and he has written about the role of propaganda in the perpetration of war crimes and other atrocities.

In an interview last January in De Balie, a cultural center in Amsterdam, we talked about the impact of the ICTY, beginning with the period of war. “Legal justice did exist in former Yugoslavia. We had laws!” Dojcinovic pointed out. “But in a war-torn country, where the war is still going on, concepts of law and justice are very confusing for people living under the influences of propaganda. The Tribunal represented the notion of legal justice, which could counteract the concepts of historical or cultural justice. That was one big contribution to begin with. People were forced to think of evidence, indictments, trials. All these legal notions began to circulate. Whether you liked it or not is a different issue. But they were out there as part of a normal set of values that any reasonably well-organized democratic society would need.”

The ICTY has also proven the adage concerning the speed at which the wheels of justice turn. “The Tribunal has been a slow and bureaucratic process,” Dojcinovic added. “The proceedings should have been faster and more efficient. That must be incorporated into the notion of justice. I know it’s difficult and complex because I worked there. I don’t want to judge anyone in this enterprise. But I think it can be done better and faster.”

We talked about how he went from being an editor and writer in Belgrade to the staff of the ICTY, the advocacy work he did in Amsterdam in the 1990s, and some of the recent judgments of the Tribunal (including, thanks to subsequent communication by email, several that took place after our initial discussion).

 

The Interview

 

Do you remember where you were and what you were thinking when you heard about the fall of the Berlin Wall?

 

I don’t remember. There’s no way that I could recall the moment and the place where I was. But I vividly remember the images on the TV broadcast: people getting up on the Wall and tearing it apart with this incredible joy.

 

Did you think it would have any impact on Yugoslavia?

 

No, I didn’t think these two situations, the Berlin Wall and Yugoslavia, were related in any way. We lived in a world that was quite detached from the real true misery of the Eastern European type of Communism, with its severe repression and everything that comes with it. It’s sad to think of it now but Yugoslavia was referred to by some of my Romanian friends as the America of the so-called Eastern Bloc. Many people lost their lives trying to swim across the Danube from Romania to try to get into Yugoslavia — to get a feeling of the free world. Can you imagine?

At the same time, we knew that everything was far form perfect in our society. We knew, most of my friends and colleagues, that we were to a great extent free — we were free to travel, our passports had value, our citizenship had value — even if the country had an undemocratic foundation. That feeling may have contributed to our lack of resistance during the two or three decades prior to the breakup of Yugoslavia. Some of us, though not all of us, lived in a bubble. We probably had too many good feelings about ourselves and our life and our society. At the same time, and to a limited degree, there were many courageous activists in particular in academia who paid a very high price. Some members of the generation that is older than I am were arrested and abused.

My generation was a generation that fashionably embraced a postmodern type of thinking, with all its good and bad sides. We believed that we were just like anybody else in the so-called Western Hemisphere. That feeling might have created a kind of mental laziness in terms of our own society. We were quite unprepared for what was going to come. I left Yugoslavia on the first day of the outbreak of the war. Even on that very day, I still wasn’t aware fully about what was going to happen. I knew that the situation was quite serious up until that moment, June 28, 1991. I remember the army going into Slovenia and the Slovenian territorial defense fighting the Yugoslav Army. It was a very difficult notion to come to terms with. The degree of violence that was brought to bear in this situation was difficult to understand. The political processes that led to that point, however, were probably easier to understand.

At that time I was editing a number of journals and publishing my own work, including books. My first major clash, which was an omen of what would later happen, was at an academic journal, a journal for social and cultural issues, edited and published by the students at Belgrade University, called Vidici (Horizons). It was perhaps the most prominent academic journal in the former Yugoslavia. I had a clash with one of the editors who was close to the Milosevic family. This, in my opinion, minor conflict even reached the national press. I think the press was more interested in him, as a member of the upcoming political elite led and shaped by the Milosevic family, than it was interested in me. The editorial board and the advisory board had elected me as an interim editor-in-chief for a period of time. This other editor experienced that as a personal attack on him. Obviously he had the power at the time, not me. For the first time in my life, I was personally threatened by people from the narrow circle around Milosevic’s wife, who was running this show and who was a close friend of this gentleman. This Milosevic family protégé would later become a prominent minister in the Milosevic government, first a deputy prime minister in the federal Yugoslav government and then minister of culture in the Serbian government. As a deputy prime minister in the Yugoslav government for, I believe, international relations, he was negotiating with the Croatian government in the mid-1990s. The threat was given in this KGB type of way, completely unknown to all of us, including me. Another future minister in Milosevic’s government, a young political apparatchik from the closest circle of Milosevic’s wife Mirjana Markovic, threatened to kill me, literally. One day he invited me into his office and said, “We will liquidate you unless you go along with the decision that we’re going to take.” That was a political decision, not the decision of the editorial and the advisory boards made up of both young and distinguished scholars.

I just didn’t understand the threat. Another political apparatchik, a person I have never seen or met before, invited me to a dark alley and told me what might happen to me and what had happened to other people. I was so naïve. I thought these people were just trying to warn me. In the end we reached some sort of agreement, not because of the threats, but because I realized that had I really been officially appointed to that position, we would not have funding for the journal. We agreed that he would be the interim editor-in-chief, but that the other editors would actually edit the journal. One of the editors submitted his resignation as a sign of support for the initial decision of the editorial and the advisory board. That was my first physical experience with the world that we should have been more aware of, the world of secret-police type meetings and “friendly invitations.”

The phrase “coming of age” may be an accurate description of what was happening to me and, at the same time, around me. Many years after that incident I learned that a “liquidation list” had indeed been compiled in this case and that my name was on top of the list. It seemed incredible to me, and yet, this was first-hand information and the turning point in my perception of the concept of redistribution of power in non-transparent and non-democratic environments. As if the level of brutality and violence from before and behind the Berlin Wall, paradoxically around the time of the fall of the Wall, was becoming an integral part of the Yugoslav social reality as well. This was a clear sign of regression.

 

And the point of disagreement…?

 

The disagreement was just over the position. He didn’t want me to have that position. He probably thought that having me instead of him leading this important journal was a personal defeat for him. He was afraid as an educated person, not just a party apparatchik. He wanted to stay in touch with academia and culture. He wanted to keep this little island for himself and not just go completely into politics. He was fully aware of all the dirt he was swimming in, the political and intellectual wasteland around him, and he wanted to keep this clean niche for himself. That was all that was at stake, really.

Later, I left the journal and became editor-in-chief of another journal, and that’s where I ended my Yugoslav life and career. In 1991, I went on vacation and never returned. In the meantime the then-federal military authorities tried to find me and, like with so many other able-bodied men, send me most probably to the frontline in Croatia. And here I still am, 22 years later.

 

You must have been very young at the time to become editor-in-chief.

 

I was. I was born in 1964. I was 27 or so.

 

You had studied…?

 

I studied at the Faculty of Philosophy at the University of Belgrade. My early interests were almost solely in literature and then in modern philosophy in combination with philology and linguistics.

 

That was where Mihailo Markovic was teaching, yes?

 

Yes, but I had nothing to do with him. I have a little anecdote to tell about him, which happened later, when I was already living in Holland. He was one of the founders of the Socialist Party of Serbia, along with Milosevic. He has been for a long time a prominent thinker in some post-Praxis Marxist circles in international academia. His books can still be found in the curricula of some social science departments in the United States. Sometime in late 1993 or early 1994, I had a short correspondence with Noam Chomsky. He asked me a question along the lines of “what the hell had happened with Mihailo Markovic?” He must have heard from other people that something strange had been going on with an old colleague, perhaps even a friend, who had taken an ideological turn, particularly in social and political practice.

I tried to be honest with Chomsky. ”Look, I’ll just ask some of my friends who are more experienced rather than give my own personal opinion.” I talked with some of my friends who would have known Markovic much better. We all came to one and the same conclusion. On the one hand, judging by his scholarship record while not losing sight of the immediate political context and the redistribution of power in Serbia of the late 1980s, he’d most probably made a pragmatic decision. On the other, maybe he had a deeper psychological problem: delusions of grandeur. He probably thought his beliefs and his work and his ideology were bigger than society. I must have responded to Chomsky by saying something like, “You would need a psychologist, or even a psychiatrist, to give a competent answer to this question.” After all, why would someone harm so many people and stick to his old beliefs in an extremely radical way?

 

Did Chomsky write back?

 

I believe he did. But I don’t remember what he wrote.

 

I can give you some backstory to this. I came back from a visit to Yugoslavia in 1989. I gave a presentation in Philadelphia about Poland at Judy Chomsky’s house. There were a number of people there who had been connected with the Praxis Group. At the end, I mentioned that I’d been in Belgrade and I’d been very disturbed by what I saw: all these pictures of Milosevic and bumper stickers that said “ Ja [heart] Srbija.” I said, “I think there’s a very strong nationalism appearing in Serbia.” And the people who were there, including Ed Herman who co-wrote with Noam Chomsky, said, “No, that’s not possible. Our friend in Yugoslavia tells us that there’s no such thing as nationalism in Serbia.” I asked, “What friend?” They said, “Mihailo Markovic.” I’d heard of the Praxis Group, but I didn’t know who Markovic was. So I said, “Look, I’m just telling you what I saw with my own eyes.” Actually, the influence that Markovic and others of his type in Belgrade had on the U.S. Left was profound, and continues today, including the writing that Diane Johnstone and others were doing on former Yugoslavia.

 

It’s a very serious phenomenon. And it has caused a lot of damage. The abstract philosophical conversations are fine: we may agree or disagree on a number of issues. But when people talk about these issues without almost any factual and empirical knowledge about them, and Noam Chomsky is one of them, it’s an absolute disgrace. And this is someone whom I read so dearly and for so long. This organization of ZNet has launched attacks on people without facts, publishing untruths about Srebrenica and topics related to war crimes. I’m speaking here of issues connected to the work I’ve been doing for last 15 years here at The Hague. It is quite painful to see that ideological agendas can become more important than fact-finding missions.

 

So, you were studying philosophy and philology, with a focus on a particular language?

 

It was philology, with philosophy and literature included. I was criticized by my friends from the mid-1990s on for never really pursuing an academic career.  I made my living as an editor and literary critic. I had a monthly TV show about books and published a lot of literary criticism. Also, I was on the editorial board of Knjizevna Rec (Literary Word), one of the best-read literary biweeklies in former Yugoslavia. During the 1990s, I published two volumes of poetry under two different pseudonyms.

 

You had a great career going when you left Yugoslavia.

 

I was editor-in-chief of Pismo, a journal for world literature. When I was offered that position, my friends didn’t believe the offer was sincere. My then-boss, the late Yugoslav and Serbian poet Rasa Livada, offered the position to many people, but I was the one who got it. It was amazing. I formed a new editorial board and, against Rasa’s staunchest poetic principles, I managed to persuade him to include not just writers but also young scholars on the editorial board. I wanted a combination of theory and practice. This was our first substantial friendly disagreement. I remember him as a great poet and an incredibly kind and generous man. My office was in the old synagogue in Zemun that was no longer being used as a synagogue. It was this beautiful space we could use as our office for our journal. I served for a year and a half. I handed it over at one point, I believe it was sometime in late 1991, when I realized that I probably was never going to return to Belgrade. In our last telephone conversation, which I still vividly remember, Rasa Livada accepted the situation as it was and, after discussing the technicalities of the situation, said to me (poetically, of course) that “after all, one cannot be protected against all contingencies of life.” As a poet, he knew that there was no way back for me to the places of the past.

My first job in Holland was for a publishing house importing and exporting English-language books. That lasted for six months. At one point I was talking to a friend, the late Dutch novelist and poet J. Bernlef, a great Dutch writer. I was complaining about the misconceptions in Holland of the conflict of former Yugoslavia. I’d attended a public debate on the issue and realized that no one from the region was invited as a speaker. What was discussed had very little to do with the situation over there. So, my friend invited me to this building here to talk with Chris Keulemans, a young writer and intellectual, who later became director of the Balie. We formed a group of intellectuals living here already, including some of my friends who came to Holland after me. As a result, we cofounded an organization to support independent media in former Yugoslavia that existed for 15 years at least. I worked as a researcher in 1993-94, and there were several Dutch people involved in the practical aspects of the work.

Then, in 1993, I cofounded with two of my friends, Slobodan Blagojevic and Hamdija Demirovic, poets from Sarajevo, the first PEN center for writers from former Yugoslavia, or Ex-Yu PEN, based in Amsterdam. We never had a supranational PEN center. We only had ethnic, or national, PEN centers in Croatia, Serbia, Slovenia and so on. About 120 authors joined us, not just fiction writers but also academics. Chomsky joined us. Also Charles Simic, Allen Ginsberg, Claudio Magris, even Salman Rushdie. Rushdie published an article in Index on Censorship saying he was honored, or proud, or something to that extent, to be a member. The mayor of Amsterdam set up a secret meeting with him at the mayor’s house in 1994. The means and ways of supporting our friends and colleagues in Sarajevo and Bosnia as a whole were discussed on that occasion. All these great people completely understood what we were trying to do. We published an international journal called Erewhon – after Samuel Butler’s novel. That lasted for a number of years until Hamdija Demirovic and I joined the Tribunal. That’s when the activities around Ex-Yu PEN and the journal ceased. In 1998, I joined the Tribunal.

I never experienced my life and my position in Holland as a victim or a refugee. I never got registered as a refugee. I always tried to pursue a relatively normal life to the extent that was possible. I learned the language. I began to speak, translate, and write in Dutch. I noticed that there was a difference between people like me –who had the privilege to leave the country when I had a choice and not to return because I didn’t want to be drafted, get sent to the front line, or end up in prison – and the people who actually were the real victims of the war who came in late 1991 from Croatia and mid-1992 from Bosnia. Those real victims of the war included every layer of the population, not just intellectuals or privileged people. They came to Holland and every other country in the world.

My life was easy compared to them. I had a home here in Holland. I don’t see myself as a victim of the war. I swam to a safe shore. These others were part of a major flood, or tsunami if you like, stripped of everything they had. Many of them didn’t know what happened to their families. Compared to these tragic stories, my life was quite easy, and it still is.

 

You were here in Holland about 7 years before joining the Tribunal. Have you seen a change in understanding here in Holland about what was going on in Yugoslavia?

 

Yes and no. A number of activities, which we organized starting from this very building, may have changed perceptions. This became a center for objective information for anyone who wanted to know something about former Yugoslavia. We were also a center for people who wanted to do serious research: journalists, academics, activists, various NGOs that did a great job. This was the beehive for different people who would fly in and fly out. It changed a lot in terms of perceptions. But did it change the true understanding of the conflict and the causes? I’m not sure about that. That would require serious academic research into the entire body of work done here in Holland.

 

Was there an advocacy element to these NGOs? And did that have an impact on European politics?

 

Again, that’s a difficult question. You would have to speak to people who had more to do with European institutions than I did. Through these two or three organizations that I cofounded, we supported a number of civil actions in former Yugoslavia by a number of NGOs and independent movements and intellectuals. We supported them in various ways – financially, with materials, by helping with printing. We supported organizations and individuals across the board, throughout the country, in every republic and province, regardless of who these people were as long as they were independent, not linked in any way to the state, and didn’t advocate forms of radical ethnic nationalism, which we would obviously have disagreed with.

 

Were any of the disagreements that characterized the conflicts in former Yugoslavia reproduced in the diaspora here in Holland?

 

Definitely, and not just in the Netherlands. Various interest groups immediately decided to follow their local nationalistic leaders. The groups that I worked in were unique in that respect.

Before the war, there were Yugoslav schools all over the world — wherever there was Yugoslav emigration. Soon after the war broke out, these schools disintegrated and turned into Serbian and Croatian schools. The language and literature that were taught were no longer Serbo-Croatian but Serbian or Croatian. The disintegration started with these identity issues, like what is the name of the language that I speak. By introducing different concepts, based on very old romantic notions of ethnicity, these communities were split up. They wouldn’t talk to each other. There was a rift in Holland as in other countries.

 

Did you experience any threats like the one that you faced in Serbia?

 

I was personally never threatened by anyone. There were some threats. We had various debates that extremists disrupted occasionally, but there was never a wild outburst.

 

In 1998, you went to work at the International Criminal Tribunal for the Former Yugoslavia (ICTY). How did that happen?

 

The tribunal was officially started by a UN Security Council Resolution in 1993. It got up in running in 1994, and the first indictments were issued in 1995 and 1996. I first worked as a consultant to a U.S. broadcasting corporation that in 1996 reported on the first ICTY trial of Dusan Tadic, including the trial of Drazen Erdemovic for the crimes committed in Srebrenica, as well as the public hearing on the indictments against Radovan Karadzic and Ratko Mladic. In 1998, I was contacted by a colleague in the translation department who told me they were looking for a researcher to conduct major research into the first collection of original documents seized by the Office of the Prosecutor in the region. That’s how I got my job at the Tribunal.

At that time, the documents were still, I believe, seized involuntarily. This was before the official cooperation with the governments from the region was established. This was a collection of documents seized in the formerly Croat-controlled part of Bosnia – the so-called “Herzeg-Bosna” – related to two major trials – Tihomir Blaskic and Dario Kordic. After that, we managed to seize major collections in Bosnia related to the Serb cases. When Milosevic fell in 2000, we got full cooperation from the new authorities in Serbia as well. We managed to get access to the archives, to the suspects, to many witnesses, which we couldn’t easily do up until that moment, certainly not in Serbia or Montenegro.

 

My information from that time comes from the memoir of the chief prosecutor, Carla Del Ponte. It was an important book but basically quite boring, because it was all about her demanding information, not getting it, and going back and demanding it all over again. How did you experience that constant rejection as a researcher?

 

These first several years were extremely frustrating. It was different from other war crime tribunals, due to the fact that Yugoslavia was a fairly modern country compared to other war-torn regions. Everything was well documented, like in Nazi Germany when the rechsstaat and the archives served the Nuremburg trials so well.

It was extremely frustrating for many people. It was much more so for the people who were leading these struggles, and less so for me. At first we just received these documents. Then, when this bubble broke, we were sent there to collect the materials. Up until 2000, you knew that the documents were there, you didn’t have direct access to them, and you were also afraid they would be hidden or destroyed, which did happen to some extent.

 

They had the opportunity to destroy them all, but they didn’t.

 

No, they didn’t. Some of these people were involved in serious crimes, and they saw this as their life goal. For some of them it was art. Hitler called his propaganda a “work of art.” You don’t have so many artists who are willing to destroy their work of art (unless they are conceptual artists who destroy their art as part of their philosophy). In this case, they wanted to preserve these documents for posterity, and some of them sincerely believed in their work. If you are like this, you don’t want to destroy part of your life and beliefs just like that. You want people to refer to you. What others perceive as a crime you see as a serious body of work.

 

Like a body of academic work.

 

Yes, this was so in the case of Vojislav Seselj, whose judgment is pending now. He perceived this as serious academic work, and his so-called “scholarly contribution” has been used as evidence in the courtroom.

 

When you went back to Serbia to collect these materials, how were you perceived by the people you were interacting with?

 

At the time when I went, obviously there was a different government in place. The people who received us and other members of the Tribunal were kind and professional, although I know that part of that professionalism was to protect a number of documents and protect the state against prosecution as well. The two periods – before and after Milosevic – were quite different (even though it was Milosevic who initially, ironically enough in his case, endorsed the cooperation with the Tribunal). When Zoran Djindjic came to power, we were given serious assistance. They deserve a lot of the credit for the work of the Tribunal, especially the Office of the Prosecutor, from 2000 onward.

 

And you interviewed people as well?

 

Yes, I did. But I can’t talk about that. I hope to talk about it one day. To conduct these interviews, I had to learn specific aspects of international law. Apart from working with some of the greatest international lawyers, which was an incredibly rewarding experience, I had to teach myself law.  I also took courses in international law. These were very different situations than academic or journalistic interviews. It was a very different situation from my life in Holland before I joined the Tribunal or my life in the former Yugoslavia. I have to give credit to a number of lawyers and investigators who helped me a lot. Now I’m certified as a war crime analyst. And I’m not the only one. There are still quite a few people working at the Tribunal who changed their careers as a result of this experience.

 

Do you see yourself continuing to do war crimes work?

 

There is a deep inner struggle to go back to my origins, which is probably highly unlikely. I’m thinking of my next book, which will probably deal with the contributions of the elite part of any culture that gets involved in war crimes. It will look at how to forensically understand the role of history, politics, and culture in war crimes trials. I’m currently lecturing about this and trying to introduce a new body of evidence — historical, political, and cultural — as forensic evidence in war crimes investigations and trials. This relates not just to former Yugoslavia. I’m also thinking of Germany and Rwanda and extending these ideas to other regions of the world to investigate the role and influence of intellectuals in war.

 

It sounds like a valuable extension of your last book. And that book was in some sense a combination of your two interests.

 

I’m trying to find a backdoor into the main building, so to speak. I got involved 15-20 years ago in cognitive linguistics. I set up a project here with top cognitive scientists like Daniel Dennett, Nicholas Humphrey, and others. I brought them over here for a series of debates and lectures. I’m trying to use that body of knowledge to understand the deeper mechanisms of the human mind. In my case, it always begins and ends with language, which is my main interest. To create our entire social reality through language might be the mightiest theory we have. Over the last 15 years of doing this work, I’ve realized that the war was to a large extent built on a certain linguistic foundations.

I remember a little news report before the outbreak of the war, in the leading Serbian daily Politika, about one of these socialist-communist sessions held at the federal level. The report quoted one of the prominent speakers, who at that point realized that the nationalists might have introduced such a powerful set of concepts that they threatened to destroy the older concepts that defined our life under the Communist regime. This top-level party apparatchik said basically, “We need to reinvent, and urgently so, new concepts that will bring back our society.” In other words, they needed words, or a whole new vocabulary, which would keep them in power. There was a deep awareness in non-democratic societies that are not extremely violent, not purely totalitarian or fear-driven, that language establishes a new set of values, that you can use language to lead people in a particular direction and make them do what you want them to do. The institutional foundations of the society were based on the language specifically designed and utilized by the regime. Communists were quite successful with that. That’s how propaganda and manipulation works any place on earth, regardless whether it’s a democratic or non-democratic society. Democracy has its propagandistic features as well. At a deeper cognitive level, however, this is probably how we create social realities regardless of its, strictly speaking, political intentions. Language is the most powerful building block we have, both individually and socially. These are some of the ontological foundations of my current research project.

 

What do you think has been the legacy of the Tribunal? Compared to what you thought a tribunal could and could not do when you started 15 years ago?

 

Shortcomings are often accomplishments as well, because you learn by trial and error. This has been a substantial legal and social experience for the region and internationally.

Looking at the region of former Yugoslavia, the Tribunal may have introduced the forms and concepts of legal justice in the middle of the war. Legal justice did exist in former Yugoslavia. We had laws! But in a war-torn country, where the war is still going on, concepts of law and justice are very confusing for people living under the influences of propaganda. The Tribunal represented the notion of legal justice, which could counteract the concepts of historical or cultural justice. That was one big contribution to begin with. People were forced to think of evidence, indictments, trials. All these legal notions began to circulate. Whether you liked it or not is a different issue. But they were out there as part of a normal set of values that any reasonably well-organized democratic society would need.

One contribution that came much later: the Tribunal supported and contributed to the establishment of local war crimes departments. This happened in Bosnia, where they are still successfully trying their own war criminals, as well as in Serbia and Croatia and anywhere else in the region where crimes were committed. We did not only contribute in terms of our legacy outside the region but also in technical forensic knowhow and exchange of knowledge in the region. This accomplishment was an offshoot of the first one. If people are forced to think in terms of international law and proper trials, they are also forced to think about trying their own criminals at their own national level.

 

That was a major conflict – whether someone should be tried at the international or the national level. Many Serbians wanted to try Milosevic in Serbia rather than at The Hague.

 

Yes. Milosevic would say, “Sure we can try our own people,” but that was part of the political manipulation.

The Tribunal did represent an advancement of international law. We had war crimes, to put it in simple terms, but there was no major international institution to try the perpetrators at that level. So, the ICTY reinstituted the legacy of Nuremberg trials. All other institutions began to mushroom at this time. Our Tribunal gave birth to others – Rwanda, Lebanon, Sierra Leone, Cambodia, including the International Criminal Court. These were the offspring of the ICTY, structurally, organizationally, and in terms of international law.

The Tribunal may also have served as a deterrent. I’m not sure anymore to what extent, but just the notion of a legal institution and the indictments that were issued in 1995 against Radovan Karadzic and Ratko Mladic would have presumably meant a lot in the region in terms of caution, as people might have thought to themselves, “Do I really want to take this course of action as a political leader? Sure, I know my fellow associates will protect me, but you never know.” War crimes can be tried as long as war criminals live. So, that might have served as a weak deterrent.

Also, together with the Dayton agreement, the Tribunal brought that part of the war to an end, in Croatia and Bosnia, until the conflict in Kosovo in 1999.

All of these things may have contributed toward a new approach to the concept of impunity. Some people were really put on trial. We have not just played as judges and created local show trials in order to get closer to the international community. There was an institution that seriously investigated and arrested war criminals, regardless of who they were and where they came from. On top of that, it wasn’t just, as it was in the beginning, the low-level perpetrators that were arrested, but the leaders. We tried the leadership cases. That must have been a concern at home for many of the former presidents and generals on all sides: Serbia, Croatia, Bosnia, Macedonia, and Kosovo.

I’m pretty sure that if some of them had not died prematurely, in Bosnia and Croatia, they would have been indicted as well — and not just Milosevic, who now unfortunately features as the main culprit. He was perhaps the most powerful one, but he was not alone in this enterprise. One should never forget to mention Franjo Tudjman. Personally, I believe that he would have been indicted if he had lived long enough, and most certainly some of his closest associates as well. The trial judgment in the Gotovina case was pretty clear about that. Even the role of Alija Izetbegovic in the Bosnian war crimes would certainly have been investigated.

Now the shortcomings, which are also accomplishments of a certain type. In the first place, the Tribunal has been a slow and bureaucratic process. The proceedings should have been faster and more efficient. That must be incorporated into the notion of justice. I know it’s difficult and complex because I worked there. I don’t want to judge anyone in this enterprise. But I think it can be done better and faster. Why? Because it directly addresses the fairness of the trial. You should not keep these suspects too long under the presumption of guilt, detained for years without trial. Clever lawyers, who are better versed in procedural issues than I am, should come up with a formula to speed up the process. The human rights of those indicted should be respected. And the human rights of the victims as well, because they should get satisfaction more quickly.

Another serious shortcoming, and this is something I will be addressing in the future in terms of academic research, is the detachment from the region. When the Tribunal was founded, it had to be founded as an institution outside the region because there was no comparable institution there and, of course, the most basic conditions for war crimes trials in the region would not have been met. But it took us a number of years to realize that we needed closer cooperation with the institutions in the field, which means NGOs, reliable individuals, various movements, and even the local authorities. Part of the reason it wasn’t done, I believe, was a fear of bias and prejudice that probably bordered on paranoid fear and generated all sorts of conspiracy theories. Rather than take a risk, the Tribunal decided to stay away from it all. When that threshold was passed, especially with the fall of the Milosevic regime, many of my friends and colleagues realized how essential and sincere that assistance was. That contributed to the velocity of the process. The evidence came quicker, the contacts and advice came quicker, and in most cases, it was very reliable. We should be less paranoid and trust people from the region more rather than judge them.

Another shortcoming may have contributed to some weak jurisprudential judgments. This of course was the relative lack of competence of some of the professionals involved in this process. The most obvious and most recent example was the Gotovina judgment. The more recent acquittals of General Momcilo Perisic,  Jovica Stanisic, and Frenki Simatovic testify to that effect as well. It was, I believe, all a combination of legal ineffectiveness and probably personal, or even political, preconceptions. Three very different parties are involved in this exceptionally complex process: the prosecution, the defense, and the judges. Hundreds of people work (or, more precisely, have worked) on these trials. It is difficult to pinpoint the specific causes of this failure of justice. The incriminating evidence presented in all of these trials was truly overwhelming. This again proves the fact that judges don’t hand down verdicts like God. They are human beings. The prevailing opinion now is that the Gotovina appeals judgment in particular has damaged the credibility of the institution as a whole and will probably haunt the institution for a very long time and in a very unfortunate way. One judgment can cause great damage to the work of so many fine professionals. It is a painful fact, not only for me or international justice, but for the victims of these crimes in the first place.

 

Is that decision irrevocable?

 

You can ask for retrial, if there is new evidence to revise the decision. It is not irrevocable, but it is very difficult to reverse the process once it gets past the appeals threshold. I usually blame us, the prosecution, in certain cases for not doing a good job. But in this case, the prosecution didn’t do a bad job. We could have done a better job; we can always do a better job. But it had very little to do with the evidence put forward by the prosecution.

This kind of ineffectiveness is in some cases connected to the arrogance of the international staff. They get appointed without any knowledge of culture, geography, history, things that should be part of their training in some way. I don’t claim that every judge has to be a historian of the region. But there must be a certain ABC of knowledge that they possess prior to the appointment, a knowledge of matters that may directly or indirectly affect their assessment of the relevance of the evidence presented to them. If you don’t understand certain evidence that comes from a certain region, you cannot properly craft a judgment, based on the forensic evidence, of guilt or innocence. It goes to the credibility of the judges, and the international legal staff in general.

 

Can you give an example of that?

 

There are many examples, unfortunately. In the early stages of the Tribunal, as observed by Lawrence Douglas in my book on propaganda, there were people at the Tribunal who believed that Banja Luka was a potential suspect, a person that is, and that this town in Bosnia was someone who should be investigated. You had many similar examples in the courtroom. Once, for instance, as related by Douglas again, the judge interrupted the testimony of a witness in the Milosevic trial talking about the financial aspects of the case and the contribution of the Milosevic regime to its friends and their war efforts in and around Republika Srpska. This financial expert was a Swedish scholar who reviewed the entire traffic of financial transactions between the two regions during the war, starting from the point of when an isolated Serb entity was formed in Banja Luka. One of the judges interrupted the witness asking him why , for example, he had not compared the financial transactions between 1985-91? You see that they didn’t understand some basic notions of history, of constitutional changes, of state formation, all inseparable part of the ABC of the breakup of Yugoslavia. Of course, the expert witness gently reminded the judge that that wasn’t possible because this “state” entity wasn’t in place at that time.

 

So these little mistakes are lights that reveal much bigger ignorance.

 

Yes, it’s incredible. I could give you many more examples. I was raised with the notion of education while others are raised with the notion of training. You can train people to hit a nail with a hammer over and over, but you can’t necessarily educate them about the bigger picture of their work. The same principle applies to jurists and the international legal arena. Apart from the basic knowledge and foundations of international law, as it seems to me, they are all together facing serious new intellectual challenges as well. We should not create an environment full of old and young technocrats of international law.

 

Carla Del Ponte entertained at one point the idea of bringing a case against the United States for its conduct in Kosovo but ultimately decided against it. Do you know anything about this?

 

No. If I did, I probably wouldn’t be at liberty to tell you. But I do believe that her intentions were sincere. My instincts, as someone who worked there a long time, are that there might have been insufficient evidence, but I don’t know. These situations need better review. In some cases, unfortunately, justice comes too late, or it doesn’t come at all.

One of the greatest achievements that I haven’t even mentioned has been the enormous body of trial records and archives we created for the future. There are over 9 million documents in the archives, apart from video and audio evidence and other artifacts. I don’t think I worked on a case with fewer than 3-5,000 admitted exhibits. We had to review with the team millions of potential papers to narrow it down to 10-30,000 or even 100,000 documents that would constitute potential evidence. We would then file a motion saying that we have 10-30,000 documents to admit as evidence. And then 3-5,000 documents were admitted, on average, though there were cases with more.

 

For the trials in the region, do prosecutors and defense attorneys have access to this documentation?

 

Yes and no. First of all, there is something called “rules of procedure and evidence” that provides for the safety and confidentiality of a number of these documents, particularly state-related documents. We are often under obligation to protect evidence that’s been given to us by different state parties. This evidence may or may not be admitted in the case. If admitted, it would be under special protection so that it won’t become public. In some cases, states reverse their decision. Occasionally, documents that were not meant to be public become public. But that wasn’t a big part of our evidence. And there are many other provisions that, for example, deal with the protection of victims and witnesses. This is a particularly important aspect of the ICTY’s work.

 

I’m interested in the impact of the Tribunal on the region, for instance on EU accession. Carla Del Ponte talked about using accession as a carrot and a stick. Also, I’m curious about the overall impact. Most people I talked to in the region felt that the Tribunal had an overall positive impact.

 

If we’re talking about EU accession or any other complex issue, the Tribunal was only one of many international institutions involved. And we shouldn’t give all the credit to the international institutions either. A lot of credit goes to the local actors and local initiatives: political parties, courageous and brilliant NGOs, and a number of purely intellectual institutions at an individual and collective level. Without these people, without these healthy roots in society, any policy, including a carrot-and-stick policy would not have found resonance. These countries would still be living with extreme ethnic nationalism. They would probably be closed societies rather than open ones. And the transitions would have been much more difficult.

Croatia and Slovenia were closer to the EU from the very start. And that was for cultural reasons in terms of major cultural traits and their historical influence on the society. Look at the incredible influence of the Church in Serbia and Croatia. It’s obvious that the Catholic Church would be part of the EU and other international institutions, particularly economic ones, whereas the Orthodox Church would traditionally advocate a more closed, isolated, self-sufficient society, with its traditionally greater, or rather extreme, forms of animosity toward the West. These values are the values people are raised with at home. It’s the cognitive conditioning of the society consisting of the same stories told and retold from generation to generation that make you also who you are. This is a strong variable in the development of these societies. That cultural situation in both Serbia and Croatia had a major effect on the speed of this process, including accession, and it wasn’t just a matter of ethnic nationalism.

Both Milosevic and Tudjman were close ideologically to the EU and other international institutions. Milosevic was never closed to many international negotiators. It was the extreme nationalists that he used, people like Markovic, Seselj, and others, who represented the radical part of the society opposed to that project and who believed that at one point they would be able to overthrow the “internationalist” in Milosevic. These extremists believed that they could take over and go “back to the roots,” which was some mythological non-existent place in history in which the Eastern Hemisphere was reunited according to some Slavophile dream, like the Teutonic dream of the Germans. And the Kosovo myth, for instance, played a very important role in that. The Croats didn’t have a national mythology as well developed as that. Or at least it wasn’t strong enough to lift their patriotic and ethnic dreams from day-to-day reality to the level of mass-delusional psychosis. I am not familiar with an equivalent of the concept of “heavenly Serbia” in Croatia, let alone Slovenia.

So, again, the credit goes to both the brave, knowledgeable, courageous local initiatives and individuals and the international institutions. The muscle of the policy came from abroad. The Tribunal, the EU, and other international institutions were the real fighters in the arena. They could make the leaders change their decisions or adapt. Once these leaders were thrown out of the ring, to use the boxing analogy, then you could see how important it was to have these local initiatives and political parties. So, I would say that most of the credit goes to them.

 

What about the impact of the Tribunal today? The Gotovina decision was not only a surprise in terms of the verdict. For the U.S. public, it was a surprise that the Tribunal still existed. For the younger generation, the war in Yugoslavia is as distant as the Vietnam War is for us. Perhaps here in Europe it is a little different.

 

Not much. Honestly, both Serbian and Croatian authorities have been trying to sweep the Tribunal off the table finally once and for all. They’ve had enough of us — because we’ve been trouble.

The acquittal of Gotovina for Croatia meant indirectly, not in strict legal terms, of course, the acquittal of the whole Croatian policy during the war. It meant that their late president has been cleared of all charges. We all knew that indirectly in the first judgment in the Gotovina case, which involved a joint criminal enterprise, Tudjman would have been indicted for his participation. And that was part of the evidence admitted into the trial, indicating that the orders came from him to get rid of the Serbs in Croatia. So, you see, they can now live with this idea of being only victims and not perpetrators. But one wonders, if it wasn’t Gotovina or other commanders, who could have committed the crime? Who deported or expelled the Croatian Serbs? Who destroyed their homes and upon whose orders? Who killed the innocent civilians? And there are many other questions that all remain unanswered.

 

Yes, the judgment didn’t say anything about the crime but whether he was the one to issue the orders.

 

They used a fact from the initial judgment to diminish and destroy the whole argument – the 200-meter range of artillery fire. The evidence that the first judgment relied on was much broader and placed within this joint criminal enterprise. As part of that, there was command responsibility. As a commander, you are under obligation according to international humanitarian and criminal law to investigate every possible crime committed under your command, which was not really done in this case. And many crimes were committed. During the so-called “Operation Storm,” thousands of Serbs left Croatia, many were killed, villages were burned. People were mistreated and tortured. And now there are no culprits? I would recommend to any legal researcher to research the judgment based on the evidence introduced, every single piece of evidence and the interpretation in the appeals chamber, and to investigate the judges themselves, to see who they are. They’re not superhuman creatures. You might discover that some of them might have had quite curious ideas about what had happened in Croatia during Operation Storm. If I may put it again in the language of cognitive science, this might be an important aspect of their own pragmatic cognitive conditioning, personal and otherwise, which may have taken place inside and outside the legal mandate of the Tribunal. As if we need a sign to remind us: “Beware: human beings are at work here!”

 

Were any lower level soldiers indicted for Operation Storm?

 

Not by the Tribunal. There were, I believe, some cases in Croatia.

 

Were they convicted?

 

There were some convictions, I think. But only with low-level perpetrators, just like in the Serbian courts. It didn’t go up to the leaders, which would reach the level of the state. Both Serbia and Croatia do try some of these cases. And some of them are very well done. But they’re not giving us the bigger picture. What’s important here is that this is not an ordinary murder. This is a state-led drive. If there is a common plan and a purpose, and in some cases the evidence of genocidal policies, you can’t investigate the principal perpetrator without investigating the whole leadership. This concept of organized crime is called “criminal conspiracy” or, according to the doctrine introduced and applied by the ICTY and ICTR, “joint criminal enterprise.” That’s what they’ve not been doing on a local level so as not to implicate their own leaders, including the state.

Serbia had clear legal reasons to do this. Bosnia and Herzegovina sued Yugoslavia (Serbia and Montenegro) on a genocide case before the International Court of Justice. Same with Croatia. So, they have a clear legal rationale for trying cases at home, but they usually don’t go up to the leadership.

 

What do you think will be the future impact of the Tribunal? Japan largely ignored the results of the Tokyo Trials, and those wartime issues have only come up because of China or Korea. But at a structural level, they couldn’t have an offensive military – so the Trials had that impact. Do you think the Tribunal will have that kind of structural legacy?

 

It’s hard to say whether the Tribunal and the judgments as they are now will have impact in 15-20 years. The example of the Nuremburg trials is perhaps better than the Tokyo trials because Japanese culture contributed to the treatment of the war crimes. But with Germany, these are two comparable situations.

Apart from the legal body of work that has been created so far and will be created over the next few years, it’s of absolute importance to set up a number of initiatives immediately at the local and international level, preferably together, for serious exploration of the complete record, that would define the research into different aspects of the legacy of the Tribunal. This research should cover not just the legal aspects but the historic, the political, the anthropological, the law enforcement angles: how was the evidence gathered, how was it analyzed, how was it defined? There are so many different possibilities. New armies of researchers from inside and outside the region will be approaching this work in different ways: through journalism, through scholarly work, through topical discussions. New generations will be able to address these issues locally without the burden of their parents and grandparents having been involved. The emotional distance will in time allow a closer, more patient, and less prejudiced look into the facts. As a result, open debates will create a new set of values that will in many ways contribute to the development of these societies, but it will take time.

Look at Germany. I remember, in the early 1950s, I believe, there was research done on whether the German population in the new democratic society would vote for a political program comparable to National Socialism. It was a shocking figure: 50-60 percent of the people would have done so! So, the understanding that the criminal policy of the Nazis was part of their political program had not penetrated German society in the 1950s and perhaps not even in the 1960s. It wasn’t until a new generation was raised. All these societies in former Yugoslavia are going through these same processes: Serbia, Croatia, including Bosnia.

We often leave Bosnia out of the loop because most atrocities were committed against Bosniaks. That government faced two enemies, and the international community imposed an arms embargo as well. But as it was defending the idea of a single Bosnia, it made a number of crucial mistakes. The Bosnian government accepted aid and arms from Islamic countries, and even mujahedeen were integrated into the army. That was all done with the full knowledge of President Izetbegovic. We shouldn’t idealize him. Criminals were involved in the defense of Sarajevo, and that too was promoted by Izetbegovic. If you want to have a ranking, he wouldn’t be on top of the list. He certainly wasn’t as bad as Milosevic or Tudjman, but we shouldn’t forget him. Part of Bosnian society will come to that understanding at some point as well.

There’s an amazing body of evidence that has not been touched. We shouldn’t allow lawyers to create their own isolated niche where issues will be debated and discussed among a relatively narrow international elite. I’m afraid that the tribunals, including the ICC, have been taking this slightly wrong turn in terms of claiming the territory for themselves. No, these issues affect all of society. Part of the legacy should be to transfer the knowledge and incorporate it into the societies of Serbia, Croatia, and Bosnia – rather than have this isolated elite corps of international lawyers. That’s why I’ve been inviting so many researchers to knock on the door to research these 9 million documents and many other artifacts. It’s still not been used to its full extent. You can make your own cases, draw your own conclusions, hold your own trials. There’s more evidence in the archives than there was at Nuremburg.

One of the great accomplishments took place when the collaboration with local authorities got up and running and young interns started coming to the Tribunal. That was just like someone opening the main gate. We were suffocating; and then these young people came in with their ideas. Some of them had never traveled abroad, had never gone outside of Serbia or Croatia or Bosnia. They started to learn about us, and they went back, got jobs, started changing society from within. We need to bring these young people over, give them scholarships and opportunities to do research, write articles, talk to scholars, and publish whatever they want. I think that will also be an important part of the Tribunal’s legacy.

 

When you think back to 1990, have you had any major second thoughts about your philosophy or your worldview?

 

There’s one thing that I regret. I should have been involved more and earlier in the intellectual resistance to what was going to come. My response was rather late. It wasn’t adequate. It wasn’t strong enough. It wasn’t consistent enough. Maybe it’s just who I am. I support activism, but there’s no activist in me. What they used to call “armchair socialist,” that was me. I don’t go to the barricades, but I support the people who do. Why do I blame myself? I lived like many of my friends under the spell of a good life. I had the ability to travel and exchange opinions with friends and colleagues all over the world almost without any limitations. My awareness of the situation as it was unfolding from the late 1980s wasn’t sufficient. I blame myself for taking it almost more as an intellectual game rather than as a very serious, potentially atrocious development in society, particularly in Serbia, but also in Croatia and then Bosnia to a different extent.

I can give you an example. I was approached by a friend in 1990 or 1991, Filip David, a prominent writer and the editor-in-chief of the cultural section of Serbian television. There was a weekly cultural program on TV, a 60 Minutes-type of show. There was 20-30 minutes devoted to a topic in politics and society, and the rest was on books. He said, “You’re a new generation, and I have a feeling that we won’t last very long here. Given the changes taking place — in this department, with what Milosevic is doing — this may be the last chance to say whatever we want in this half hour. I want you to say whatever you want, do whatever you want, invite whomever you want.” We were given nearly half an hour. I invited two colleagues and friends, Ms. Jasna Sakota, a philosopher, and Mr. Zoran Milutinovic, a literary theoretician, both distinguished scholars in their respective fields. We criticized very specific aspects of Serbian society and the changes taking place at that time.

Soon after that, the entire department of the cultural program was put on “forcible leave.” They were sacked. But the response to this half hour was amazing. A lot of people in society watched this program. The legendary director of Nolit, one of the biggest publishing houses from Belgrade, Mr. Milos Stambolic, called me and said, “My son watched this show. He pointed at you and said, ‘This is my kind of guy. This is the new period, this is the future, this is the way I want to think.’” But, unfortunately, too many of us left. I blame myself for not being hard enough, not consistent enough, more present. When people get fired, the impact is much bigger than you think. I underestimated the impact of my own work. I thought of myself as just one individual with not very much influence, and I thought that there were much more important people out there. But then you realize that some people do listen to you in the same way that you listen to them. Had we all changed, and not left, we may have made things less atrocious, less bad. So I blame myself for being too naïve and not bright enough to see through all these issues.

Let me express it in economical terms. In 1989-90, during the government of Ante Markovic in former Yugoslavia, we never had better paid jobs. But at the same time we had this overwhelmingly present ethnic nationalist discourse. So, the discrepancy in daily life was enormous. You get pampered with relatively enough money to live on but there are these annoying sounds coming from the political leaders and their supporters like Mihailo Markovic.

Maybe I wasn’t intellectually ripe enough. Some people say, “Yes, I knew what was going to happen.” And I say, “No, I didn’t.” I certainly did know what I didn’t like about it. And I knew why I didn’t like it. But I could not have foreseen mass atrocities.

 

Amsterdam, January 27, 2013

 

 


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