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Exclamation Encountering the Past: History at the Yugoslav War Crimes Tribunal

Encountering the Past: History at the Yugoslav War Crimes Tribunal

By Robert J. Donia

Robert Donia received his Ph.D. in history at the U-M in 1976 specializing in Southeastern Europe. He is a frequent consultant to the International Criminal Tribunal for the former Yugoslavia. He lives in San Diego, California and is an adjunct assistant research scientist, Center for Russian and East European Studies at the U-M.

The International Criminal Tribunal for the former Yugoslavia (ICTY) has been in business a little over 10 years. Many critics, led by Bush Administration officials, have argued that the proceedings have dragged on too long and that ICTY should conclude its work in the next few years. I disagree. Well below the radar of the international media, the tribunal's recent judgments have demonstrated a thorough, careful and conservative application of international humanitarian law to the crimes of the Yugoslav conflict. This development should be hailed, rather than scorned, by Americans and their government.

When the trials began, most judges were wholly unfamiliar with the history and culture of the region in which the alleged crimes were committed. Appointed by the UN Secretary General, judges have come from China, Guyana, Jamaica, Korea, Malta, Morocco, the United States and over two dozen other nations, but none from the region of the former Yugoslavia. As part of their cautious approach to decisions, judges have carefully considered the implications of the region's history in the cases they try. International law and regional history have met one another in the Hague tribunal's three courtrooms. In an unusual series of confrontations between rival interpretations, the prosecution and defense have each engaged historians as expert witnesses to aid the judges in reaching their decisions. The tribunal's caution and thoroughness can be seen at the nexus of law and history in its recent judgments.

Prosecution

In several early trials, prosecutors called expert witnesses primarily to inform the judges about the historical background to alleged crimes. Dusko Tadic, a low-ranking Serbian perpetrator of crimes against Bosnian Muslims in the northwestern Bosnian town of Prijedor, was the first to stand trial. In that case, the prosecution's first witness was Professor James Gow, an English political scientist who specializes in military affairs. Gow submitted a written summary that emphasized his key points, subsequently elaborated by fact witnesses, that pointed to the role of Serbian President Milosevic, the Yugoslav National Army and various Serbian paramilitary organizations in attacks within Bosnia-Herzegovina in spring 1992.

Expert witnesses also appeared in cases against Croatian and Muslim defendants. I was called as the prosecution's historical expert in June 1997 in the case against Croatian General Tihomir Blaskic, who had commanded Bosnian Croat troops in their war with the Army of Bosnia-Herzegovina in 1993. I submitted no written report, but instead spoke from notes for several hours about the history of Bosnia-Herzegovina and the background of the Croat-Muslim war in Central Bosnia. My presentation was more an extended lecture on regional history than court testimony as it might take place in an American court, where a judge would neither need nor welcome such an extensive background portrayal. I never mentioned the defendant by name, although I included in my presentation some events that occurred only hours before the alleged crimes were committed on April 16, 1993. I pointed out that Croatian nationalists looked longingly at the arrangement from 1939 to 1941, when central Bosnia was part of a Croat-dominated subdivision in Royal Yugoslavia. I also discussed the well-known, longstanding hope of Croatian President Franjo Tudjman (a historian before he became president) that Croatia would annex some or all of Bosnia-Herzegovina.

In subsequent trials, the testimony of expert witnesses underwent a change. Judges became more familiar with the historical background to the conflict, and they sought to limit expert reports to the circumstances immediately surrounding the alleged crimes. Prosecutors continued to call expert witnesses who presented balanced accounts, but the experts increasingly honed in on recent history and dealt with individual towns or regions where the accused conducted their deeds. They further sought to explicate the political culture in which the perpetrators came to wield power.

In addition, the mode of presentation shifted from direct testimony, often in lecture format, to something resembling an article in a scholarly journal. Experts prepared written submissions replete with the scholarly apparatus of footnotes and appendices. Their presentations often included citations to documents in the vast collection assembled by the office of the prosecutor in its investigations. Direct examination was brief, while cross-examination could take several hours and even days.

Written testimony of the more scholarly type was presented by the historical expert called in the case of former Serbian President Slobodan Milosevic. Dr. Audrey Budding, an instructor at Harvard, explicated the growth of Serbian nationalism in the 45 years of communist rule (1945-1990). In Budding's account, Milosevic was neither a classic tyrant nor a diabolical monster, but rather a master pragmatic politician who evoked latent feelings and mobilized ready followers as a charismatic and appealing public figure. Her presentation did not in any way exonerate Milosevic for carrying Serbian nationalism to destructive extremes, but her portrait placed him squarely in a nationalist tradition in Serbia that had gained strength in the later decades of communism.

Defense

Whenever the prosecution has called a historian as an expert witness, the defense has responded in kind. Unlike the prosecutors, who have abjured advocating collective guilt of any kind, many defense expert witnesses have advanced notions of collective innocence. Numerous expert witnesses for the defense have sought to blame the conflict on nationalities other than that of the defendant.

The expert witness is, in theory, distinct from a fact witness by having little or no first-hand knowledge of the specific events alleged in the indictment. At their peril, defense attorneys have ignored the distinction between expert and fact witnesses. In the trial of Tihomir Blaskic, the Croatian army general in command of Bosnian Croat and Croatian army troops in Central Bosnia, the defense called an eminent Croatian historian, Dusan Bilandzic, to counter my account of historical antecedents. He gave a very credible account of the history of Bosnia-Herzegovina, albeit considerably sympathetic to the historical role of the Bosnian Croats.

But Bilandzic's cross-examination did not deal with his direct testimony. It turned out that Bilandzic had accompanied Croatian President Tudjman to an infamous meeting with Milosevic in March 1991 at which Tudjman and Milosevic had agreed in principle to divide Bosnia-Herzegovina between their two countries. He also served as a member of the commission which sought in vain to reach agreement on a map of division. Prosecutor Greg Kehoe doggedly cross-examined the expert on what Tudjman and Milosevic agreed upon in their 1991 meeting. Bilandzic actually gave up very little in the face of this withering examination, but his very silence served to reinforce the prosecution's point that the two presidents had very likely agreed on a secret plan to carve up Bosnia-Herzegovina.

The most elaborate theoretical argument advanced by a defense expert witness was presented by Professor Stjepan Mestrovic, a sociologist at Texas A & M University, in the case against Croatian defendants Dario Kordic and Cerkez. Mestrovic offered a new interpretation of an old distinction between peoples of the Balkans and those of Western Europe and North America. He characterized the latter as possessing advanced organizational capabilities based on cultural traits. He rather unwisely chose to illustrate his thesis by asserting that in restaurants everywhere in Southeast Europe, a customer usually faces a long wait to order and be served a meal. In contrast, he argued that the American and European ideal—he specifically mentioned as an example the Netherlands, where the tribunal is based—was characterized by prompt service provided by ubiquitous fast food establishments.

Meštrovic suggested that Croats, as inhabitants of the Balkan region, were inhibited by their culture from organizing sophisticated military operations such as those carried out by Western Europeans and North Americans. On that basis, he argued it was more plausible that violence in Bosnia-Herzegovina was a product of local factors, and less plausible that the defendants could plan and mount a military operation for the purpose of ethnic cleansing. It was apparent that this argument did not sit well with the three trial chamber judges. Presiding judge Richard May wryly ruminated in question form about service in the tribunal cafeteria, renounced for its culinary catastrophes and interminable waits for service.

The notorious ICTY cafeteria survived another two years until it was mercifully destroyed in a fire in 2002 that closed the entire building for a day. But the expert's argument went up in flames right on the spot. Meštrovic's risible argument found no resonance with the judges. They made no mention of his report when they rendered their judgment, indicating their rejection of the contorted effort to exonerate the defendants by suggesting that their national affiliation a priori rendered them unlikely to organize sophisticated operations.

But Meštrovic shared with other defense experts a proclivity to suggest the notion of collective innocence: the nationality to which the defendants belonged was blameless, ran this line of argument. Therefore, the defendants were unlikely to be guilty since they were shrouded in the group's collective identity.

In the case of General Stanislas Galic, commander of the Bosnian Serb units that regularly attacked Sarajevo with shelling and sniping against civilians, the defense presented three expert witnesses, each with a somewhat different emphasis. Each suggested that the war was either inevitable or forced upon the Bosnian Serbs, leaving at least the implication that some atrocities were unavoidable in the “fog of war.” In these presentations, history was largely reduced to repeated collisions of three collectivities: the Serb, Croat, and Muslim nations.

Judgments

Whatever the theories advanced by experts for the prosecution and defense, the ICTY's success or failure will rest upon the judges' decisions. Typically hundreds of pages in length, judgments are rendered in each case by various trial chambers and by the tribunal's appeals chamber.

In all judgments rendered so far, the court has ignored, and thereby implicitly rejected, all collectivist explanations for violence. In fact, judges bristle at any suggestion that the proceedings are a trial-by-proxy of any nation or collectivity. The principle of individual accountability is enshrined in the statute of the ICTY, an addendum to the UN Security Council resolution that founded it.

Trial chambers have carefully considered the role of history in the crimes they have examined. The trial chamber in the case of Dusko Tadic, the low-level perpetrator in Prijedor, devoted 127 out of 765 paragraphs to an historical account, "Background and Preliminary Factual Findings,” which consisted of two parts: a general discussion of the “Context of the Conflict,” and local developments in a section "Opstina Prijedor (Prijedor Municipality).” The judgment briefly notes the existence of Serbian and Croatian states in the Middle Ages, citing them as the basis for expansive nationalist territorial claims advanced in recent years. The account soon turns to the twentieth century, in particular the atrocities of the Second World War. Citing inter-ethnic violence in Bosnia-Herzegovina during that war, the court proposes that past atrocities help explain the violence of the 1990s:

This is the legacy with which the population of Bosnia and Herzegovina has had to live. Yet in the postwar years until about 1991 and, despite past horrors or perhaps having learned better from them, the multi-ethnic population of Bosnia and Herzegovina apparently lived happily enough together. It is only subsequent events that may suggest that beneath that apparent harmony always lay buried bitter discord, which skillful propaganda readily brought to the surface, with terrible results.

These referents belong in any historical survey of the region, even if they are not complete or wholly balanced—the medieval Bosnian kingdom, for instance, was not mentioned. But to quote Richard Wilson, a legal scholar who has examined the use of history in legal judgments, “this is recognizable as a proper history.” The judges' concise, spare version of history might be called “historical essentialism,” since it consists only of those elements that the judges felt were essential to comprehend the atrocities, the “terrible results” that they hear about from witnesses in each case. Historical essentialism has become the operative principle in various trial chambers as they consider contending historical accounts. The historical narrative is employed to account for relevant atrocities and transpose those events from the realm of the utterly irrational and incomprehensible into a context that renders them plausible even if not justifiable.

The trial chamber judgments have provided what might be called “forensic history”: an account derived from witness testimony and documentary evidence submitted in each case. The judges typically divide their finding into at least two parts: “crimes committed,” and the “role, if any, of the accused.” Trial chambers have done most of the legal heavy lifting in the second part in determining the defendant's individual culpability. But in their effort to provide information for the first part, the judges have produced several detailed, nuanced, carefully vetted micro-histories of towns and regions where crimes were committed. These range in length from a few paragraphs to over 100 paragraphs. As a result, we now have painstakingly constructed historical accounts of the towns of Prijedor, Srebrenica, Foca and Bosanski Samac in the period of the war and before. More such accounts are likely to be forthcoming in subsequent judgments.

These individual accounts are of little interest to all but the most devoted observers of the area, but taken together they put forth a common pattern of organization and a shared sequence of developments. There was, in short, a well-conceived common plan for ethnic cleansing, carried out in Bosnia-Herzegovina first by the Bosnian Serbs against non-Serbs, albeit with considerable local variations in the scope and nature of the atrocities and the number of victims. These chambers have produced histories that are not only credible and readable, but indispensable to understand the origins and course of the 1990s conflicts in the former Yugoslavia.

The court's conservative approach to history is evident in its judgment in the case of Dario Kordic and Mario Cerkez, two Bosnian Croat leaders in central Bosnia. This case shared a common historical background with that of General Blaskic, and as in the Blaskic case, I was called by the prosecution to provide historical background to the alleged crimes. At stake in the Kordic-Cerkez case were the killings of over 100 Bosnian Muslims in the village of Ahmici and other victims in villages along the river that had once defined the farthest extend of Croat lands in Bosnia-Herzegovina in 1939-1941. In its judgment, the trial chamber ignored the prosecution's argument that Croat nationalists hoped to restore the boundaries of 1939-1941, but it concurred with the better documented and more recent issue in contention:

142. The trial chamber finds that President Tudjman harboured territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a Greater Croatia, including western Herzegovina and central Bosnia.

Offered an opportunity to engage in speculation about an older antecedent of the Croats' armed actions, the trial chamber demurred and reached back into history only as far as necessary. Here historical evidence was used suitably, in my view, to conclude that Tudjman wanted part of Bosnia-Herzegovina, while the specific assertion that the boundaries of 1939-1941 helped inspire the attacks, was not—and indeed need not have been—affirmed in order to address the legal issue at hand.

Conclusion

The ICTY has been criticized for the brevity of sentences handed down and for inconsistency in sentencing practices. Surviving victims, many of whom dread the return of their former tormentors, have been among the most vocal critics of the court's sentences. In the case of Serbian guards at the Omarska camp in northwestern Bosnia, all five defendants were found guilty of torture, murder and other crimes, but they received sentences ranging from a minimum of five to a maximum of 25 years in prison. (The ICTY charter does not provide for a death penalty.) The commander of Bosnian Serb nationalist forces beseiging Sarajevo received a sentence of 20 years, a term considered unacceptably brief by many thousands of Sarajevans who lived through four years of daily shelling, sniping and widespread deprivation. The tribunal has also been criticized for political bias and for the interminable length of its trials. The trial of Croatian General Tihomir Blaškic began in June 1997 and remains on appeal as of this writing.

But in spite of significant shortcomings, the ICTY is making a contribution that is unheralded but pivotal to the role of international jurisprudence. It is producing a detailed, thoroughly investigated and comprehensive account of what happened at critical times in the battle for Bosnia from 1992 to 1995. It is unlikely ever to achieve the unrealistic goals that some have hoped it would. It can never quench survivor's thirst for revenge, nor fulfill all hopes for equitable justice. But it is gradually fufilling one of its major tasks in providing to mankind an empirically verifiable account of what transpired amidst the horrors of war in the former Yugoslavia. Despite its many inadequacies and weaknesses, the ICTY is gradually fulfilling some of the hopes that led to its creation a decade ago.



http://www.umich.edu/~iinet/journal/...o2-3/donia.htm
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The Journal of the International Institute, Vol. 11, No. 2-3, Winter-Spring/Summer 2004
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