CIAO DATE: 11/03

War Guilt and Responsibility: The Case of Serbia
II. The Milosevic Trial, Justice, and Reconciliation

Eric Gordy

March 2003

Social Science Research Council

Probably one of the most dramatic repeated scenes since the end of the wars of Yugoslav succession has been the sight of Slobodan Milosevic whom most observers consider as the most important figure behind the wars and their conduct, defending himself before an international tribunal for charges of war crimes, crimes against humanity, and genocide. Not many observers foresaw Milosevic's removal from power, and his arrest and extradition were probably not foreseen even when the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993. The fact that the case is being prosecuted at all has already had profound consequences in undermining the tradition of impunity for high public officials, and these consequences have begun to be felt: the immunity that Augusto Pinochet declared for himself has been fatally weakened, there is an initiative to try Ariel Sharon in Belgium for violations committed under his command in Lebanon, and there is a political movement to prosecute Henry Kissinger for his interventions as secretary of state. Although the new International Criminal Court (ICC) will probably not have the autonomy or power to fulfill its mandate effectively, the principle that heads of state can be called to account for violations of international law has probably now been established.

Two purposes for the establishment of the ICTY are declared by Security Council Resolution 827 (1993), which established the Tribunal: 1) to prosecute persons responsible for serious violations of international humanitarian law, and 2) to contribute to the restoration and maintenance of peace. The legal portion of the trial relates to the first goal, which obligates the prosecution to provide evidence that establishes beyond a reasonable doubt Milosevic's criminal responsibility as the principal figure in what the indictment calls a "joint criminal enterprise."

Right now the presentation of evidence on the second of three joined indictments (for crimes in Kosovo, Croatia, and Bosnia-Herzegovina, respectively) is still in progress, and Milosevic has yet to present a defense. This makes any final judgment of the success of the prosecution's case premature, and probably also irrelevant, since this will be determined by the judges and not by outside observers. One factor in Milosevic's defense strategy was almost certainly the calculation that he was likely to be convicted, and this may account both for his decision to represent himself and for his use of the courtroom as a platform for publicity.

In relation to the second goal of the ICTY, it is not only Milosevic who is being put on trial. The case is also trying the capacity and legitimacy of international judicial institutions as instruments of policy. This trial operates principally on the level of public opinion, especially in relation to the perceived legitimacy of the Tribunal in Serbia, and in relation to the possibility for promoting an understanding of the recent past and promoting processes of reconciliation.

With regard to the perceived legitimacy of the Tribunal, the evidence presented against Milosevic so far seems to demonstrate persuasively his knowledge of and participation in the organization of criminal activity, particularly the destruction of evidence of massacres in Kosovo and in the supply and control of paramilitary forces in Croatia. To the degree that this evidence is credible to domestic audiences, it promotes perceptions of legitimacy and may spark reevaluations of the events of the past decade.

At the same time, three problems interfere with the perception of the legitimacy of the Tribunal in Serbian public opinion. First, the conditions under which Milosevic was delivered to the Tribunal continue to raise doubts both about the legality of the procedure and the motivations of the political actors who carried it out. The general perception is either that Milosevic was extradited because of the inability of the domestic legal system to manage high profile humanitarian law cases, or that he was sold for international aid. Political leaders like Prime Minister Zoran Djindjic do not put much energy into refuting the second perception. Second, Milosevic's conduct of his own defense has been an attempt, successful at times, to undermine the credibility of witnesses and the trial process, especially in the eyes of the domestic television audience. And third, the repeated failure of efforts to protect witnesses and their families has worked to create a picture of an inept and haphazard prosecution.

A further obstacle to the perceived legitimacy of the Tribunal has been the lack of clarity in domestic public opinion regarding what the trial is about. Although the Tribunal statute specifies that it is empowered to try suspects for war crimes, crimes against humanity and genocide, the belief is widely expressed that Milosevic is being tried for having started the wars, or for being responsible for the destruction of Yugoslavia. Charges like these might be considered under what the International Military Tribunals (IMT) at Nuremberg and Tokyo defined as "crimes against peace," but this category of crimes is explicitly and clearly excluded from the mandate of ICTY. However, since there are varying and incommensurable interpretations on the question of "crimes against peace," the sense that this is the primary motivation behind the Milosevic trial can seriously undermine the credibility of the Tribunal.

The prosecution's choice of witnesses has sometimes contributed to this lack of clarity, creating the appearance that the Tribunal functions to stage confrontations between Milosevic and his former political opponents. The confrontations between witnesses like Mahmut Bakalli, Ibrahim Rugova and Stjepan Mesic and Milosevic gave every appearance of replaying their old political conflicts rather than presenting new evidence, which made it seem that the Tribunal was doing victors' justice by proxy, and not very effectively. This raises suspicions that the Tribunal is not contributing to the development and maintenance of peaceful relationships, but contributing to the replaying and revisiting of pretexts which were used in the recent past to destroy those relationships.

Clearly and consistently, public opinion surveys find that Milosevic and the people associated with him enjoy very little public sympathy in Serbia. While a majority continues to perceive the Tribunal as illegitimate, this is not an overwhelming majority - it has hovered between 60% and 65% in surveys since 2001. People who object to the ICTY do not generally believe that Milosevic is innocent: most people regard him as being guilty of something, and the main points of contention have to do with a preference for a domestic trial and a fear that a guilty verdict from the ICTY would amount to a declaration of collective guilt.

The low regard in which both Milosevic and the Tribunal are held reflects a problem which will have far-reaching implications for processes of reconciliation and reform. All institutions, past or the present, domestic or international, receive consistently low ratings of confidence in public opinion surveys. The finding has been repeated several times that institutions are regarded as closed, corrupt, and as working against the interests of ordinary people. Whether or not these low levels of confidence are justified, they present a major barrier to any use of official or semiofficial channels, especially to promote particular perceptions. Although many people express a preference for a domestic trial, domestic courts are themselves ranked comparably to the most despised institutions in Serbia, including the state-owned media, the parliament and the police.

Some especially interesting findings about perceptions of responsibility were made by the Strategic Marketing agency in a survey in April 2001. One clear comparative element stands out: a marked tendency among people to project responsibility onto factors far from themselves. Asked to name the most important reason for the 1999 NATO intervention against SRJ, 29.8% named "the policy of the Milosevic regime," while 55.2% identified the political or economic "interest of the West." Asked to choose between two options for "guilt for misfortune," respondents named Slovenes (45.3%) more than Serbs (10.8%), the United States (27.3%) more than NATO (25.2%), the "international community" (44.8%) more than "all the peoples of the former Yugoslavia" (20.5%), Milosevic (42%) more than "the people who elected him" (17.6%), and the interests of international business (53.7%) more than the interests of domestic business (11.2%). Probably this pattern suggests a tendency toward projection of responsibility as a way of avoiding confrontation with it.

Strategies of projection are probably not the result of ignorance. Knowledge of major events in the wars, including war crimes, is widespread in Serbia. But respondents do not believe that they are well informed. 22.3% of respondents consider themselves well informed about the wars in Croatia, and 19.4% about the wars in Bosnia-Herzegovina. Nor do respondents believe that their fellow citizens were well informed.

When asked the (long and probably confusing) question, "Has it ever happened that a new fact which you have learned from any source about any event related to the conflicts (wars in Croatia, Bosnia-Herzegovina, Kosovo) caused you to change your thinking or position about the role (responsibility) of the warring sides?," an overwhelming 85.5% answered in the negative. Despite this somewhat discouraging result, the survey seems to suggest some potential guidelines for efforts to disseminate information. They indicate a wide gap between the sources of information people trust and the sources they actually use. As their primary sources of information during the war, respondents named:

RTS-TV/state media 80.4%
Independent papers (Blic, Glas, Danas) 67.9%
Witnesses 62.3%
Relatives 45.5%
State-controlled papers (Politika, Expres, Novosti) 43.1%
Independent radio/TV (ANEM, B-92) 42.4%
Personal experience 17.4%

Asked what sources of information they trusted, respondents answered differently:

Source	Trusted	Did not trust
RTS-TV/state media	23.2%	42.5%
State-controlled papers	28.8%	36.5%
Independent papers	44.7%	17.9%
Independent radio/TV	62.4%	16.2%
Relatives	68.6%	16.2%
Witnesses	62.2%	15.4%

Why did people tend to use most the sources of information which they trusted least? The answer would most likely have to do with the structure of distribution and availability, and immediately suggests concrete measures to improve the quality of information people receive.

Aside from independent broadcast programs, respondents expressed the most faith in interpersonal sources, particularly relatives and witnesses. The personally close category of "relatives" attracts more trust than the potentially unlimited category of "witnesses." As with the attribution of responsibility, distance is a factor. International media sources are not mentioned, but the distance of these sources might interfere with the level of trust they enjoy. The same might be said of international non-media sources, such as international governments or intergovernmental organizations. Clearly, any effort to change minds (a tremendously difficult project from the beginning) has to involve influencing the stories people tell one another, more than the stories people are told by institutional sources.

Considering the way the prosecution has developed its case so far, it seems reasonable to expect that the trial will end in a well-deserved conviction for Milosevic, after a trial carried out under far more favorable conditions than he could expect at home. The impact of this might be only legal, however. For all the impact this conviction will have in terms of international law, it will be received in utterly predictable ways by groups of different political orientation in the region. This is largely because of the low levels of confidence held in all institutions, whether domestic or international, including ICTY. It is also in part because of the persistence of the political culture which was established during the Milosevic regime, and the lack of willingness on the part of people currently in power to confront the questions raised by the trials at the ICTY, to take decisive action to bring accused war criminals to trial, or to offer a persuasive alternative to nationalist understandings of recent history.

If the available evidence on public opinion offers any guidance, however, it suggests that unofficial initiatives, especially initiatives to promote dialogue and exchange across borders, could generate levels of communication and trust that could make it possible for citizens to do what their governments refuse to do, and what the judicial institution established to oversee events in the region is charged with doing: to contribute to the restoration and maintenance of peaceful relationships in the region.

Eric Gordy received his B.A. from Swarthmore College and his M.A. and Ph.D. from the University of California-Berkeley. His research is concerned with relations between culture and politics and with the experience of life in authoritarian states. Since 1991 he has concentrated his research in Southeastern Europe, particularly Serbia. He is the author of the book, The Culture of Power in Serbia: Nationalism and the Destruction of Alternatives, as well as of articles in Problems of Post-Communism, Current History, Human Rights Review, Balkanologie, Southeast European Politics and other journals. He has lectured in the United States and Europe on transitional justice, public memory, human rights and cultural politics. His current research projects include an investigation of the way Balkan societies confront the memory of wars of the last decade, and a historical analysis of masculine identity in the Balkans. He teaches courses in sociological theory, media and popular culture, and international politics at Clark University.