The phantom of justice

In a scene toward the end of Buñuel’s Phantom of Liberty, a man climbs a skyscraper and starts shooting people with a rifle concealed in his briefcase. Eventually, the police arrest the sniper, but a provocative inversion of expected procedure takes place at the trial. The judges find the defendant guilty and sentence him to death, yet the gendarmes unlock the cuffs and shake hands with the quiet, apparently mild-mannered man. “The killer-poet” makes his way through the courtroom, shaking hands with the officials, signing autographs for the curious audience, and walks out into the street as the Phantom of Liberty shifts toward a different but related story: the ongoing search for a missing girl who is visibly present before the authorities the entire time.

In March, the trial of Slobodan Milosevic ended with the death of the defendant in the detention unit of the International Criminal Tribunal for the former Yugoslavia (ICTY). Milosevic’s death, invariably described as “unexpected,” has become an occasion for various public discussions, ranging from speculations about the future of Serbian politics to ruminations on the dissolution of Yugoslavia, from arguments about the inadequacies of the Tribunal’s proceedings to disappointment in the trial’s verdictless ending. Yet the proliferating statements, even when they explicitly acknowledge that the unfinished trial deprived Milosevic’s victims “of the justice they need and deserve” (as the ICTY prosecutor put it), nonetheless share the focus on Slobodan Milosevic as the star/villain of a number of narratives. The attention paid to different details of his life – his childhood, his relationship with his wife, his personal grudges, his diplomatic manners, his political dealings – has led many to describe him as “a deeply complex man” who was “not a racist”, probably not “a nationalist”, especially given that he was “polite and intelligent”, and “even, in a strange way, helpful”.1

Such posthumous gestures constitute in effect a re-enactment of the liberating handshakes with “the killer-poet” at the end of Buñuel’s scene. The persistent fascination with Milosevic’s personality – his drinking habits, his complex feelings – is illustrative of several distinct but related political patterns. The first is the fairly obvious history of official handshakes with murderers who are treated as celebrities. For most of the 1990s, international organizations and Western diplomats recognized and engaged with Milosevic as a legitimate political partner, even as they acknowledged that he was responsible for major crimes across Yugoslavia. Throughout this time of negotiation over ceasefires and peace plans, countless policy advisors, academics, and journalists extensively commented on what looked like Milosevic’s unpredictable ambitions and uncooperative behaviour, effectively making him and his interlocutors into stars whose moves and whims determined the course of events in Yugoslavia. Once reduced to the level of personal interaction among power figures, the broader problem of responsibility for the committed crimes evaporated before dramatic confrontations among individuals who in the end, quite predictably, shook hands, signed documents, and talked about the need “to end a war” and accept ethnic partition for the sake of peace, as in the Dayton Peace Agreement in 1995.

The Nato intervention in Kosovo in 1999 did change this attitude of basic international acceptance by denouncing Milosevic’s destructive rule, rejecting his demands, and thereby paving the way for his trial that began in 2002, two years after he was ousted from power in Serbia itself. However, this second pattern – complete international disavowal of Milosevic – retained some of the key features of the earlier international approaches to the situation in Yugoslavia. The figure of Slobodan Milosevic continued to serve as the reference point for a host of problems (like creation of nationalist projects and management of criminal networks) which were once treated through international acceptance and negotiation, but which after Kosovo would be solved through trials of individual leaders, especially Milosevic himself. This shift thus kept the insistence on personification of broader problems, but it also opened the possibility of making a political break with the past by trying and convicting the persons who planned or carried out systematic campaigns of violence across Yugoslavia. The Hague Tribunal has encouraged such “breaking-with-the-past” interpretations by putting on trial and sentencing high-level individuals (like Biljana Plavsic and Radoslav Krstic) responsible for organizing murders and mass expulsions in Bosnia-Herzegovina. Yet the crucial Milosevic case did not end in a way that allows this possibility. Milosevic’s death made it impossible for the Tribunal to reach an official court verdict; his trial left many issues unresolved, among them the complex history of Western diplomatic engagements with leaders of criminal political projects.

In this regard, the court testimony of Lord Owen in 2003 offers a useful overview of different approaches that express basically ambivalent attitudes toward the violent projects that created new states out of Yugoslavia. Owen, the former British foreign minister and the chief European Commission negotiator during the war in Bosnia, confirmed many of the prosecutor’s statements about Milosevic’s “key” role in the Yugoslav wars and criticized both Milosevic and the Western powers for failing to “stop ethnic cleansing”. Alongside this condemnation, however, Owen spoke of his own neutrality as a negotiator who wanted the Tribunal to be established for the sake of “reconciliation in these sorts of wars”, and not for the pursuit of “absolute justice [which] can actually damage reconciliation”. Apparently in that spirit, Owen faced Milosevic at the trial and told him: “I believe you wanted peace. Yes, I’ve said already from April 1993 onwards you supported all the different [peace] propositions.”2 The expression of both condemnation and acceptance of Milosevic’s intentions took place before the very court that was expected to deliver a verdict that could potentially mark a crucial break with policies that sustained wars and political violence across Yugoslavia.

In the absence of any court verdict, it is obviously still possible to make such a break, but most international reactions to Milosevic’s death (reactions coming from outside Yugoslavia) have continued to restate in countless variations the earlier attitudes: fascination with his personality, rejection of his brutal quest for power, reduction of broader problems to individuals, and hope that all the violence will somehow be left behind. This last aspect – the hope that the death of Milosevic will mark some momentous historical turn – may be a well-intentioned gesture, but it effectively obscures the issues of responsibility and justice by embracing the recently created political order and its premises as valid foundations for future developments, namely European integration and economic investments.

A recent commentary by Timothy Garton Ash is illustrative of this approach. For Ash, Milosevic’s death should mark “the end” of a period in which a Europe of empires “has been bloodily transformed into a Europe of nation states, most with clear ethnic majorities”, as well as “the beginning” of a period when state rulers will “know that they will be called to account […] for crimes they commit against their own people or their neighbours.”3 His optimistic rendering of these ends and beginnings, however, rests on the tacit acceptance of the formation of nation-states as the final and inevitable step toward some better future. The teleology of nation-state creation that underlies Ash’s argument is, of course, not a disinterested description of abstract historical processes, but an implicit justification of nationalism as a valuable and ultimately democratic political project.

After Milosevic’s death, it is precisely these nationalistic premises that must be critically questioned and not simply accepted as “bloody” but necessary stages in the gradual emergence of democratic states. In other words, the international community is faced not only with the problem of making future state leaders accountable, but also with the deeply unsettling possibility of legitimating the way that new nation-states were actually created in Yugoslavia in the 1990s: through organized military campaigns, seizure of territory, planned destruction of certain communities, murder and expulsion of targeted populations, plunder of property, sieges of cities, institutionalization of criminal networks, and reliance on violence in all aspects of political life. These issues were at stake while Milosevic was alive and while he was on trial; they are still at stake after his death. If his unfinished trial is to retain any relevance to the pursuit of justice, then it is crucial to remember that the indictments held Milosevic individually responsible for his role in an extensive criminal political project that sought to create a new Serbian nation-state in the 1990s. Most of the indictment counts were specific; they described Milosevic’s background, named his many co-perpetrators, and reported in great detail their major crimes across Yugoslavia. But the indictments also clearly spelled out that these sustained undertakings were parts of a “joint criminal enterprise” whose purpose was “the forcible and permanent removal of the majority of non-Serbs” from areas of Croatia, Bosnia-Herzegovina, and Kosovo and the creation of new Serb political entities on those territories.

The work and the legacy of this criminal political project, along with other criminal enterprises in Yugoslavia and the individuals who planned or participated in them, are the central problems that the Hague Tribunal is trying to address. So far, a number of difficulties have hampered the court’s efforts. Some key individuals – namely Radovan Karadzic and Ratko Mladic, the orchestrators of mass murder in Bosnia – have not been arrested. Others have been provisionally released from custody, as was the case with Jovica Stanisic, a leading organizer of violence in Yugoslavia, a negotiator at the Dayton Peace Accords, and later a suspect in the assassination of the Serbian prime minister Zoran Djindjic in 2003. That these individuals, whose political records encompass an enormous range of criminal activities, are still free deeply damages the credibility of the international effort to establish a court of justice. Furthermore, the Tribunal has increasingly relied on the concept of “joint criminal enterprise” in its indictments and convictions while being criticized by legal scholars for only partly defining the issues of scope and liability that the concept implies. Finally, the ICTY was established as a temporary body for adjudicating only the Yugoslav cases even though the issues it addresses have lasting ramifications for the work of other, presumably more enduring international courts and institutions.

Despite these serious problems, the Hague Tribunal is still the most capable existing venue which pursues justice and maintains a critical focus on the organizational and political aspects inherent in the joint criminal enterprises in Yugoslavia. Its thorough handling of individual responsibility has enabled the court to effectively dismiss the notion of collective national guilt, an idea that the Tribunal has roundly rejected as misleading, untenable, and harmful. Its consistent work over the last decade has also enabled it to collect sufficiently ample evidence to document the networks and chains of command that underpinned a number of criminal operations, which could range from local undertakings (running detention camps) to much larger projects (creation of new states). But the Tribunal’s resolve to examine responsibility beyond the individual level and in the direction of the political character of the joint criminal enterprises has been the most challenging and controversial aspect of the court’s work.

This is hardly surprising given that the international community could deal relatively simply with specific persons; it could grudgingly accept Milosevic or Karadzic or Stanisic as negotiators in 1995, then shortly thereafter condemn these individuals as brutal and undemocratic leaders. Yet the results of their nationalist political projects could not be as easily dismissed because they were internationally accepted and recognized throughout the 1990s. “The Republic Serb” (Republika Srpska) entity in Bosnia exemplifies these problems. The mass expulsions and murders of Muslims and Croats in areas of Bosnia from 1992 to 1995 were planned and executed by the same criminal network that organized an ethnically cleansed para-state called “the Republic Serb”. The fact that the Dayton Peace Agreement officially inscribed the existence of this political enterprise into the internationally recognized constitution of Bosnia-Herzegovina ensured that this “entity”, as it is legally termed, would have firm institutional foundations well after the war was over. Internationally sponsored reconstruction did encourage refugee returns and quota systems in government representation, but these measures could only modify aspects of “the Republic Serb” entity while maintaining it as a nationalist project that clearly marked one nation as (ruling) majority and the others as (unwanted) minorities. Furthermore, the various criminal networks established during the war adjusted quite well to the new Dayton framework and continued to function and expand in post-war Bosnia.

At this point, overturning the accomplished political projects would be a basically unrealizable task. The existence of entities in Bosnia (“the Republic Serb” and “the Federation”) has been constitutionally mandated and internationally recognized for over a decade. A similar assessment could be made for the state of Croatia, which systematically expelled the Serb population on its territory in a joint criminal enterprise that took place in 1995 under the leadership of Franjo Tudjman and Ante Gotovina (who is also being tried at the ICTY). Kosovo, where Albanian nationalists also expelled the Serb population after the Nato intervention, is on its way to becoming a virtually independent province. These developments across Yugoslavia have inflicted such enormous harm to so many people that they cannot simply be reversed through post-war reconstruction or reconciliation efforts. In the interests of justice, then, it is appropriate that the Hague Tribunal is not seeking the impossible – the undoing of the recent state creation – but is working to gradually undermine the internationally recognized legitimacy of political projects that sought establishment of ethnically pure states.

By focusing on joint criminal enterprises of the 1990s, the Tribunal is not only indicting their organizers, but is also bringing to trial the political premises and the results of these endeavours. While the court will not be ruling directly on those issues, it can nonetheless make it possible for a much broader socially and politically relevant sense of justice (beyond the level of individual responsibility) to emerge out of the trials regarding the Yugoslav wars; and such a stance for justice must explicitly reject the political foundations of joint criminal enterprises – steeped in the inherently violent drive for national domination and purity – as illegitimate and indefensible.

That is why the Hague Tribunal matters. Its trials, with or without the now closed Milosevic case, have significant influence on the political situation in the post-Yugoslav entities and states, where the results of the joint criminal enterprises are still being legitimized and contested, recognized and disputed. Its admittedly incomplete work on dismantling the joint criminal enterprises in Yugoslavia could nonetheless have far-reaching implications for the establishment and perpetuation of similar political projects and states across the globe. In this way, the ICTY, though plagued by many serious problems and deserved criticisms, has the potential to leave a lasting legacy by posing a profound challenge to the criminal foundations of contemporary states, whether they are in Yugoslavia or elsewhere in the world.

But the legacy of the criminal political projects themselves is likely to be even deeper and more enduring. Across the post-Yugoslav states, the same criminal networks that waged and profited from war are still trying to consolidate their grip on power, to establish new institutions, to win new elections, to shake hands with diplomats, to appear as legitimate and democratic parties. The Hague Tribunal’s work on joint criminal enterprises has afforded glimpses into these histories of state-building and perhaps provided a chance to revisit Walter Benjamin’s insight: “Only that historian will have the gift of fanning the spark of hope in the past who is firmly convinced that even the dead will not be safe from the enemy if he wins. And this enemy has not ceased to be victorious.”