I don’t recall when I first heard of Radovan Karadžić, but I know it wasn’t any time before the run-up to the first democratic, multi-party elections in Bosnia and Herzegovina. Radovan, with sarcastic endearment called Rašo in my family, emerged as the leader of something called the Serbian Democratic Party, one of the three main “national” political parties that were formed to steer us away from Marxist politics and economics and towards Western, liberal, democratic capitalism.  I do recall voicing scepticism about their promises, and trying to convince my eight grade classmates that ‘national’ really meant ‘nationalist’ and that with “them” at the helm Bosnia would soon look like Lebanon rather than Switzerland. And forget Lebanon, one only had to look over to Croatia to see what parties with the same names were doing, and how well that particular Westernization was going. I remember arguing that there was an alternative, pointing to Ante Marković (a.k.a. Antara, but with slightly less sarcasm) and his “reconstituted” Commies (and to drive the point home I pasted Union of Reform Forces of Yugoslavia campaign posters all over my room).  But there was no alternative, not really. Not with the bad guys in Belgrade, far more powerful than Marković, itching for “armed battles,” and not with the vast majority of citizenry successfully interpellated into political, mutually exclusive Muslims, Serbs & Croats. A Cerberus coalition of said national parties won the elections in November 1990 and took us all to hell.

Fast forward to June 2013: it’s a Monday morning and I am looking into Courtroom 1 of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. Karadžić, sitting behind a huge glass screen, is complaining about some key meaning lost in translation. He appears uncomfortable, at least compared to the other nasty blast from my past: Vojislav Šešelj, a.k.a., Šešo. In the 1990s, he was Serbia’s one-man version of the Radio Télévision Libre des Mille Collines; today, Šešelj is the tribunal’s bête noire. Those who follow the life of the ICTY are familiar with his mixed-methods approach to delegitimizing the court and its proceedings. Hissy fits, impossible demands, hunger strikes, insults, bullying, speechifying, filibustering. Then there is the regular uploading of confidential court documents onto http://www.vseselj.com‎ such that the names of protected witnesses are no longer protected. This certified political scientist (while writing a PhD dissertation on fascism in late 1970s Šešelj apparently spent a year teaching at the University of Michigan) knows how to assess the power of the strong as well as of the weak. He has repeatedly justified his behaviour as “only politics” (“this court is political, I am political, and I am here to destroy you”). And whenever he gets convicted of contempt of court (twice or thrice now), he laughs it off: “I don’t care, I am having the time of my life.”   

He was on fire that morning as well. Invited to Karadžić’s trial as a key witness, Šešelj manages to waste hours of the court’s time on stories that feature, among other things, Swedish prostitutes, Serbian folk heroes, and European medieval history (I paraphrase again, this time from my notes: “Magdeburg, the city that’s now flooded, yes, make sure it goes into the court’s record just like I explained in my book and on my website: it was the Croat armies that massacred its citizens back in 1631”). The little time devoted to answering the questions posed by the prosecutor Alan Tieger – Karadžić, recall, is indicted for genocide; extermination; murder; persecutions; deportation; inhumane acts; terrorizing of, and unlawful attack on, civilians; and taking of hostages – testifies to Šešelj’s focus and impeccable memory. “Absolutely not,” he concludes, Karadžić had nothing to do with any conspiracy to ethnically cleanse parts of Eastern Bosnia. “What happened was a natural population transfer, that’s all.”

“I feel sorry for the Muslims”

From what I have read and seen, the defendants are saying remarkably similar things across cases. “I was completely unaware of any crimes until DDMMYY, when I was retired/released from command responsibility/left politics; these responsibilities were thrust upon me, yes, but I passed them on to NN; I was only following orders and I had no idea what they really meant; we are not perpetrators, but victims; if you decide we are guilty, then they must be twice as guilty; yes, I am guilty – guilty of being betrayed by our governments, tricked into surrendering; etc.” While there have been some notable (and temporized) expressions of guilt, remorse and regret (Biljana Plavšić, the Iron Lady of the Serb Bosnia, comes to mind), the mainline script is denial and utter indifference for the agony of victims. Šešelj, on his part, likes a mix of cynicism and sarcasm.Here is my rough reconstruction of his testimony from that morning:

My goal and the goal of my party was Greater Serbia – Serbian Bosnia, Serbian Herzegovina, Serbian Macedonia, Serbian Montenegro and parts of Croatia. But this was not the general goal of the Serbian government or any other party at the time…But without help by the Serbian government, neither the Serbian republic in Bosnia nor the one in Croatia would have been able to survive…Yes, I threatened Muslims with expulsion to Anatolia, but this was a calculated threat to make them reconsider declaring independence and fighting. I merely wanted to warn them that their fate would be tragic, and it was tragic. Out of 100,000 dead in Bosnia, 50,000 to 60,000 are Muslim…I feel sorry for the Muslims, they were manipulated. Besides, I was always threatening pan-Islamists, never regular Muslims, who are anyway Serbs of Mohammedan faith.

Šešelj’s message is repetitive and, indeed, banal: “there was no conspiracy in Belgrade, no joint criminal enterprise, only isolated extremism.” As in: What did you expect me to say to you?  His discourse is banal in another sense considering that he treats the tribunal as usable theatre. While he is his own layer in a trial involving seven or eight counts of crimes against humanity, he is primarily a politician looking forward to the next election. The Serbian media does not oblige him as much as it used to in mid-2000s, but a section of the Serbian public is eating up his “Hague antics.” That day, during the flow of questions concerning Eastern Bosnia in 1992, he effortlessly sneaks in an attack on past and current political rivals, first Plavšić (“That woman was completely mad, I told you from the start”) and then two creepy henchmen of his who ended up abandoning their master and are today running Serbia (winning heaps of praise from Brussels and Washington along the way):

You are always taking my past statements out of context. They are always overstated because this is Serbian politics. You can’t take these statements literally. Let me give you an example so that you can understand this practice. The current president of Serbia Tomislav Nikolić likes to say that I ordered his assassination. Not true of course. But in Belgrade I can’t say “not true”; instead, I say: “true, I ordered his assassination, and he was slaughtering grandmas in Slavonia.” That’s the nature of political duels: you deny an accusation, you lose a duel…Besides, it is true that Nikolić was fighting in the volunteer units of my party in Borovo in 1991. As for Aleksandar Vučić, who is the current deputy prime minister, he, too, was fighting, but in Sarajevo, at the Jewish cemetery, under the command of Vojvoda Slavko Aleksić. Only later did he go off to work as a television journalist in Pale.

The last ICTY stop for me that morning was the Ratko Mladić trial. The general had been a state-sponsored war crimes fugitive for years until the authorities in Belgrade decided not to sponsor him any longer. Unlike withKaradžić, I remember exactly when I first heard of this man: it was September 1991, and YUTEL, the short-lived pan-Yugoslav TV news program close to Marković’s Commies, reported thatthe Yugoslav National Army units under Mladić’s command savagely shelled the city of Šibenik, including the magnificent Katedrala Sv. Jakova (for this great military feat, the general was subsequently promoted). By that time, my family was out of sarcastic nicknames and when Mladić was appointed the Chief of Staff of the Bosnian Serb Army, in May 1992, we knew what awaited us. Globally, his infamy primarily relates to the 1995 genocide at Srebrenica, but to many Sarajevans Mladić is first and foremost the face of the four-year siege of our city that killed 10,000 of its people, including 1,500 children (“Europe’s last urbicide” was one of many charming phrases that the chattering classes around the world used to describe our fate at the time).

That morning, in Courtroom 2, Mladić was hunched over his desk, looking frail and tired. He was also very bored until the moment he spotted my turban-wearing female friend in the audience. Then he started intensely staring at all visitors (the majority of whom were Human Rights Watch-Chicago folks that day). During the break, one of the guards in the courtroom told us that Mladić tends to be “problematic” with the audience, especially with victims and their families. It could be that he is indeed mad, as Karadžić professionally diagnosed him in 1995, but it’s equally likely that he is only a rational actor following in the footsteps of Šešelj, Milošević, and other problematic indictees before him.

What’s your problem?

That morning’s event afforded me a chance to ponder about the “shortcomings” of the ICTY and its proceedings. Many are old hat: court days are short, prosecutors are sloppy, judges are lenient and so on. (Ex-Yugoslavs tend to express negative opinions about the ICTY by foregrounding the accused, not court officials: Why are these crooks allowed to get away with the type of foot-dragging and grandstanding that would not be tolerated before a traffic warrant judge? Why are they allowed to spend so much time with each other? Why is the tribunal’s detention center in Scheveningen so luxurious? What’s with the early releases? etc.). After witnessing the Šešo-Rašo exchange that morning I am inclined to accept some of these objections are sensible, but they still do not strike me as fatal for the ICTY.  Is its work in institutionalizing the idea that state power can and should be legally restrained in its capacity to commit human wrongs really negated by items like excessive delays or its high per-hour cost? One can surely separate the court’s organization and rules of procedure from its mission, jurisdiction, legality and legitimacy.

The Hague trials, one could say, were set up to try and establish some responsibility for the committed crimes, to provide some form of accountability for them, to give some opportunity for the victims to achieve closure; to uncover some factual evidence for the writing of histories; and to promulgate some peace and reconciliation. The ICTY was never given tremendous resources and wide jurisdiction.  It set out to try no more than two companies of soldiers, politicians, and bureaucrats accused of atrocities and in so doing set forth law that could serve as precedent for future prosecutions in both domestic and other international courts. The ICTY never explicitly sought to institutionalize, encompass, or represent the right of transitional justice for the entire former Yugoslavia in the entire period of its armed conflict. No sum of institutions, whether home country trials, official apologies, truth commissions, reparations, lustrations and so on, ever could. Some reconciliation, some healing, and some closure are better than none.  Absolute justice, transitional and otherwise, does not exist. As one of my interlocutors once said, “A crime ends when one stops talking about it, and we’ll never stop talking about it.”

If one accepts this line of argument (and I am not saying that one should), what, then, are the main objections to the idea and work of the ICTY – its fundamental problems, if you will? The question is relevant for many reasons, especially now that the Hague trials are coming to an end and are subject to various anniversary celebrations. What follows in Parts II and III are my reflections on half dozen objections that I believe are commonly raised in discussions about the tribunal: politicization, bias, racism, incompetence, and ownership. By “discussions” I refer to hundreds of conversations about the meanings of the ICTY I’ve had with ex-Yugoslavs, both in their homelands and diasporas, since the late 1990s. In this imagined community, note, the ICTY is a cultural phenomenon such that it is processed not only through politics and the media but also through religion, philosophy and art. The five “statements of problem” that I use as subtitles below are my interlocutors’ actual assertives.

I should like to say from the outset that I am not trying to draft one of those position papers in which I identify a normative perspective on justice and then provide a logical collection of reasons to justify my argument. Instead, I only offer a bunch of notes or, more accurately, rants. They are primarily meant to help me open up even more conversations about the ICTY, whether via the comments section, by email, or face-to-face. I am also hoping to get recommendations and updates from the readers on the state of the scholarly and critical literature on the ICTY; anything published after 2008 will be news for me, and I’ve got much to learn.

A few more clarifications, for good measure: my conversations with ex-Yugos about the ICTY were never meant to be systematic or systematized, just as I was never meant to become a tribunalologist or a student of transitional justice mechanisms. The subtitles-assertives are not ranked by frequency, centrality or any other methodological desideratum. Next, these conversations are basically recollections, somewhat bolstered by diary notes, which is how you should judge their “authenticity” (same goes for quotes and paraphrases). Next, my conversations came out of engagements with mostly young, educated and media-savvy citizens and ex-citizens of the former Yugoslavia – a small section of the people that the tribunal likes to refer to as “core constituencies,” “local stakeholders,” “interested communities,” or “those most directly affected by its work.” And last, the conversations varied wildly in length, depth, breath, and emotional content, and not all of them were dialogues. Some of my interlocutors were government and NGO officials, others were victims, and still others were legal scholars, but the majority were none of the above.

Part II goes up tomorrow; Part III on Thursday.