CIAO DATE: 11/03

War Guilt and Responsibility: The Case of Serbia
III. Two Assumptions of the Rejection of Responsibility: Denial of the Act and Denial of the Rule

Vojin Dimitrijevic

March 2003

Social Science Research Council

The greatest resistance to the International Criminal Tribunal for the Former Yugoslavia (ICTY), and to the idea that international community and foreign actors in general can make judgments about the responsibility for war crimes in the former Yugoslavia, exists today in both Serbia and Croatia, i.e., among Serbs and Croats, including the intellectuals. It is interesting to note that things that are being said about the ICTY by these national intellectual elites differ very little from the perceptions of the so-called 'uneducated' population: they are as blunt as they are unsophisticated.

The widespread belief in Serbia and Croatia - that the ICTY is "anti-Serb" or "anti-Croat" - shows how irrational the public debate on this institution and its activity is in these two countries. Even using the criteria of Croatian and Serbian ethnonationalists (or only their segments that we would, out of politeness toward the rest of ethnonationalists, call "extreme"), these two attitudes cannot go together. Everything that is anti-Croat, according to their criteria, has to be pro-Serb, and vice versa. Despite that fact, both groups of ethnonationalists wish that the Tribunal be abolished, that no one is brought to trial, and that the already reached verdicts are annulled.

There is no need to further delve into the impression of irrationality. It is quite evident even in the texts that aim to use legal rhetoric. They reflect a strong motive to rescue from any responsibility the authors' co-ethnics, and especially the popular political and military leaders. The argumentation, however, is not so much against the prosecution that is after Serbs (and not Croats), or after Croats because of the crimes against Muslims (and not against Serbs). The "deadliest" arguments are directed against the Tribunal itself, which is allegedly illegal, illegitimate, politicized, uses impermissible and uncivilized procedure (protected witnesses, sealed indictments), etc. The logical conclusion is, again, that the Tribunal must be abolished and all accused must be released from prison, be they Serbs (or Croats).

Certainly, such was the attitude of many Germans toward the Nuremberg Court, which was made apparent by the German defense lawyers in 1945 and 1946. However, it was a line of resistance against the entire victorious coalition, which had created a court only for Germans (Japan was added later). Few people today remember these arguments (although they were put forward even by some lawyers in the victors' states), but they were guided less by the goal to receive amnesty for all participants of the war than by the solidarity with one's compatriots. During that time, it was possible to claim that what Hitler and his followers had done was not punishable according to the international, and especially German laws, which cannot be said today about all acts that the accused in The Hague are charged with, although there are strong objections against crimes against humanity and "command responsibility."

A rational debate before the legitimate court would be a "lawyers'" exchange of arguments in favor or against the accused. Such a debate is rational because it starts from the mutually agreed premises. In criminal legal codes, it is about qualifications: if subject A did X, while act X was previously defined as a criminal act for which punishment Y is prescribed, then both parties would have to agree that an unbiased arbiter, who can understand what X is and give the facts a legal meaning, has the right to decide upon the penalty Y. The opponents disagree about the facts but agree that act X is prohibited (even if they think it is not harmful).

The first reason for denying responsibility for the acts of "one's own" people in the Yugoslav wars is close to the customary lawyers' reasoning, i.e., there exists, at least temporarily and hesitantly, the assumption that it is impermissible to kill civilians and expel entire populations, but the fact that it actually happened is denied. However, in the case of participants in the Yugoslav wars, such negation differs from the customary one in one important feature. It is not primarily tied to individual responsibility, i.e., to the possible lack of evidence for charges against a concrete accused person, or to the possibility that a criminal act had taken place but the accused did not take part in it. The logic is clear: if the accused did not commit the crime, then some other Serb or Croat did it, which cannot be accepted. Believing that if an individual could be spared, it would still leave the possibility for the same charges to be used against the party for which s/he had fought, i.e., his/her people, means rejecting the very possibility that certain people and their leaders could act criminally, or issue orders for criminal acts. Here is an example. The accused Dusko Tadic was defended by his Dutch lawyer Wladimiroff in a "classic" manner: it was admitted that a camp with Muslim and Croat prisoners existed near the town of Prijedor, but Tadic, its prisoner guard, did not beat or harass anyone there. Tadic, influenced by his advisors from Belgrade or Pale (1) who were deciding about the line of defense and choice of lawyers, dismissed Wladimiroff and took a new lawyer who, in compliance with the Serbian regime propaganda, was denying the existence of Omarska, Manjaca and Keraterm prison camps, or described them as voluntary gatherings of people under war threat.

The majority of ordinary people display the well-known mechanism of denying the unpleasant facts. It has become epitomized by the behavior of the Germans who pretended they did not know where their Jewish neighbors were taken. In the case of political, non-ethnic conflicts, a typical example is provided by supporters of the Chilean dictator Pinochet. Not all Chileans who defended him as an allegedly resolute fighter against the infiltration of Communism under president Allende gave Pinochet a license to kidnap, torture, and kill people. Perhaps they should have known about it, but many people honestly did not know it, and no one had asked them the question "Do you agree that in your name Pinochet sends death squadrons to kidnap people and throw them in the sea from airplanes?" Subsequently, they could not have given an affirmative answer. However, once these acts started taking place, Pinochet's followers, gradually and half-secretly, without any media coverage, refused to perceive them as truth, and easily accepted the explanation that these were Communist lies.

If we remember, without any after-the-fact embellishment, the range of support that Slobodan Milosevic commanded in 1988-89, especially among the intellectual elite, we can ask the same question. How many people did agree in advance with everything that Milosevic and his collaborators did or allowed to be done in the subsequent years outside Serbia? Most likely they did not, and no one had asked them the question either. Milosevic and his Socialist Party won the first multiparty elections in December 1990 after their "peace-making" campaign, which was marked in the period of the pre-ballot media silence by their attack against the opposition as alleged warmongers. "Peace above all," said the elderly Milosevic's supporters for a long time. These people did not want to believe in what was happening in the Bosnian towns of Bijeljina, Zvornik, Foca and Prijedor. The most striking was their denial of the fact that those Serbs in Bosnia-Herzegovina who worked in agreement with Milosevic were besieging and bombing Sarajevo, a city where many Serbs were still living. A comprehensive contribution to this mindset was made by the regime propaganda, which still could not have been completely successful if there did not exist a desperate need to believe in it and quiet down one's own doubts. When the dramatic instances of instantaneous killings of many people started occurring, the three-year long siege of Sarajevo, accompanied by hundreds of thousand of launched missiles, would be momentarily forgotten in favor of the statements that the most dramatic events, such as the killing of Sarajevo citizens in the Vase Miskina street or at the Markale market, were instances of the Bosnian Muslims shooting at their own people. It was considered quite logical that hundreds of thousand of grenades and mines, fired over a thousand days, would not hit anyone.

This denial of facts begins to withdraw once the shock becomes overwhelming, but it still tries hard to diminish its scope, as it was done in Germany with the Holocaust, and in Croatia with the World War II Jasenovac concentration camp. The act is acknowledged but the number of victims is diminished, or some "alleviating" circumstances are discovered. There are very few people today in Serbia who deny the massacre in Srebrenica, but the number of victims is being contested and diminished even ten times. A pathetic attempt is made to denounce the Dutch soldiers stationed in Srebrenica as accomplices in the massacre. If we delve more studiously (which normally does not characterize acts of self-delusion) into the argument that the Dutch are guilty because they did not prevent the actions of Ratko Mladic's units, it becomes even more upsetting for Bosnian Serbs since it depicts them as serial, mindless killers who cannot restrain themselves from aggression but need others to control them and be responsible for not being able to prevent them from snatching their victims.

When we remember that a one-time president of the Supreme Court of Croatia stated that Croats were victims of aggression and, thus, none of them could be war criminals, it becomes evident that local debates on the Yugoslav war crimes do not recognize one of the main premises of the trials, i.e., the rules of humanitarian law. The latter, as it is stated in the titles of the Geneva Convention, ought to "improve the fate" of participants in wars, regardless of the fact whose side they are on or the nature of the war. Here we are dealing with re-qualification, where facts are probably being acknowledged, but are marked as something of a secondary nature, permitted, non-punishable, and not as criminal acts. We are dealing with the context.

This reason for denying responsibility is deeper and more dangerous. It does not rest on the refutation of facts, but on the belief that committed acts, which correspond to the legal definition of genocide, crimes against humanity and war crimes, are actually not forbidden, dishonorable and immoral. Such acts, which are sometimes covered by euphemisms, such as "humane resettlement" and "population exchange" ("ethic cleansing" also started as a euphemism), are supposedly necessary and justified in the historically crucial times when one's state is being built or saved and when the survival of the nation is in question. The obsession with the protected territory means that it must be cleansed from the potential traitors and disloyal elements. National state is a state of one nation and cannot tolerate the presence of minorities. In a historical conflict between two rival nations, laying claims to the same territory or building or "rounding up" one's state territories, there can be no mercy or sentimentality. Most importantly, this applies to both "my" and "your" side. We are at war, not some "soft," limited war during which we will sort out some secondary disagreements, but a war for our protection, survival, for our most vital interests. This war is not restrained by some sterile and "feminine" principles: the one who wins it will deserve full respect. After we recuperate and re-assemble, we will start the war again.

Among the most extreme Serb nationalists, those that are most adamantly against the Hague trials, the most respected person is likely to be a Croat Franjo Tudjman. How many times have we heard them say how much they admire him for creating the independent Croat state (and defeating "us" in the war)? As Vojislav Seselj used to say, when international circumstances will become more favorable in a few decades, when Russia will once again become a world superpower, we will start a new war and this time we will win it. However, nobody should meddle in this special game of ours, because nobody can understand the greatness of vested interests and historical tasks. Hence, we won't allow these trials, of either Serbs or Croats.

This attitude is profoundly anachronistic, but so are the conflicts in the former Yugoslavia. Their participants believe that they can do what was done and was deemed acceptable one, two or three hundred years ago. It is well documented by their propaganda sources that state that "others" have done the same, i.e., massacred Indians, conquered colonies, bombed undefended cities, expelled and exchanged populations, etc. At times it is not only a distant past that is being recollected, but it is important to note that even the events of fifty years ago seem morally distant due to major changes in the public consciousness. For example, during the turmoil of the post World War period ten million Germans were expelled from Czechoslovakia, Poland and the USSR, and no one, except the Germans, had protested. But since 1945 the world has developed to the degree that toleration of such acts, except in the case of a world catastrophe, is no longer imaginable. The warriors in our conflicts, fighting in the name of the past, for the past and in the past, are not aware of that and this is why they understand each other better than others could understand them. This is why, as warriors and warlords say, no one from the "outside" can judge them. They will put their compatriots on trial for "treason" (2) or will deal with outsiders as real men, without trials and procedural hustles.

Notes:

1. A village resort in the mountains above Sarajevo, the wartime seat of the Bosnian Serb leadership.

2. A Belgrade law professor Kosta Cavoski has openly advocated the murder of Slobodan Milosevic. Today he still insists that Serbs had the right to kill him, but he also tries by all means to discredit the "foreign" ICTY, while the latter cannot pronounce death sentences.

Vojin Dimitrijevic was a professor of international law and international relations at the University of Belgrade until 1998, when he was dismissed because of his protests against the restrictive Serbian Law on University. Professor Dimitrijevic is an honorary doctor of the McGill University in Montreal, and was a lecturer at the University of Virginia, Norwegian Institute of Human Rights at the University of Oslo, and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at the University of Lund. Since 1995 he has directed the Belgrade Center for Human Rights, a leading non-governmental organization in the field of monitoring human rights violations in Serbia. Professor Dimitrijevic is an author and editor of numerous books and articles on human and minority rights, war crimes and international politics.