Following Part I, and in advance of Part III.

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The court is political  

The smartass response goes something likes this: “Of course it’s political; what’s not political? Haven’t you read the ICTY’s website? It says clearly that the tribunal was established for explicitly political reasons, too, by the UNSC, which is political by definition.” But the smartass response is a rude interruption. The above assertive prefaces monologue, not dialogue. The monologue is a story about world politics as a dog-eat-dog contest in which the strong always devour the weak with a focus on the origins of the ICTY. “Of course an international judicial institution cannot be created on the basis of an UNSC resolution alone. Of course Chapter VII of the UN Charter does not specify the conditions under which war crimes tribunals can be set up. Of course the ICTY quickly discovered that it could not bother with the question of own legality. But when have great powers ever cared about law and institutions? Might makes right, right? The ICTY is based on the consent of states – big states, not our banana republics.”

This story varies in terms of breadth and depth, but its modal conclusion is that the tribunal cannot represent anything but “victor’s justice” and/or Western and specifically American oppression of those living on the periphery. As for the motive, the supposedly aggressive prosecution of Bosno-Serbo-Croat baddies practiced by the ICTY is a function of the desire for retribution for every case of ex-Yu insolence in recent history, starting with the Trieste crisis of 1945. As discipline and punishment at once, trials are also meant to serve as a warning to the rest of the peripheral and semi-peripheral world. This type of theorizing could be described as a cross between pop-realism and pop-Marxism with a whiff of the crudest forms of pop-anti-Americanism and some other, far less respectable prejudices. While it is not exactly a closed loop, for every new newstory indexing Western and specifically American double standards and double visions in international law, the theory gains strength. Who in the former Yugoslavia doesn’t have an informed opinion on the “Hague Invasion Act”?

The two accounts of the origins of the ICTY that I have on my shelf make something of an opposite case. Pierre Hazan’s book, subtitled ‘The True Story Behind the ICTY’, suggests that the weak (international justice activists) outfoxed the strong (realist diplomats and state-centric lawyers) and, against all odds, managed to turn the tribunal into such a revolutionary achievement (more on this below). Hazan is no theorist of norms and transnational advocacy networks, but there are more than a few parallels with this literature. The second account is Rachel Kerr’s 2004 book, which begins and ends with the thorny issue of “politicization,” including the issue of “prosecutorial discretion” as its special subset. Kerr has the ICTY walking on a tightrope. Sidle up too closely to justice, and you alienate those who rule the world; let politics in, even to manipulate it for judicial ends, and you lose credibility. While infinitely more nuanced than Hazan’s, Kerr’s framework for analyzing politics (it, too, chimes with 1990s IR theory, namely the “bringing international law back in” literature) follows the same binary – let me personify it a little as a contest between “realists” versus “legalists” – and it reaches the same conclusion. And judging by both the quotidian operation of the court as well as its key decisions up to 2002-3, Kerr finds, “legalists” had the upper hand.

I am not sure what stock-taking exercises based on the realist vs. legalist framework look like today (again, this post is my attempt to reconnect with the literature I stopped following years ago), but what struck me in my conversations is how adamant my interlocutors were in rejecting even the most carefully drawn legalist claims. It’s simple, the typical response goes, the ICTY is subject to constant political pressures and it shouldn’t be surprising to see so much judicial malpractice. Lest one is keen to dismiss this as “typical” ex-communist (and transitionalist) disdain for the notion that law serves to ensure that valuable social goods are distributed in ways that protect equal respect for everyone, note that some of the most critical arguments about the “hopelessly political court” are drawn from the texts left behind by bona fide ICTY insiders like Antonio Cassese (he of  those great international law textbooks), Gabrielle Kirk McDonald, Louise Arbour, Graham Blewitt, Carla Del Ponte, Serge Brammerz, and Florence Hartmann (more below). Anyone can cherry-pick a few memorable lines from a few memoirs and journalistic accounts (Hartmann, if I recall correctly: “the ICTY was formed so that war criminals could negotiate on the level of their innocence”), but what I find interesting is that these types of arguments have gained more and more adherents over the years.

What are we to make of the leaked email penned by the Danish judge Frederik Harhoff to his colleagues on June 6 (made available ten days later by Copenhagen’s newspaper Berlingske):

How do we now explain to the 1000s of victims that the court is no longer able to convict the participants of the joint criminal enterprise, unless the judges can justify that the participants in their common goal actively and with direct intent contributed to the crimes? Until now, we have convicted these participants who in one way or another had showed that they agreed with the common goal (= to eradicate the non-Serbian population from areas the Serbians had deemed “clean”) as well as, in one way or another, had contributed to achieving the common goal – without having to specifically prove that they had a direct intention to commit every single crime to achieve it. It is almost impossible to prove…

And I always thought that was right. I have delivered my judgements in trust that those at the top could see that the plan to “eradicate the others” from “own” areas contradicted the basic order of life, a challenge of right or wrong, and not least in a world where internationalisation and globalisation rejects any notion of someone’s “natural right” to live in certain areas without the presence of others. Seventy years ago we called it Lebensraum.

However, apparently this is no longer the case. The latest judgements here have brought me before a deep professional and moral dilemma, not previously faced. The worst of it is the suspicion that some of my colleagues have been behind a short-sighted political pressure that completely changes the premises of my work in my service to wisdom and the law.

I will return to the dynamite content of Harhoff’s e-mail later; in the meantime, let us pause over the last line. If not justice, what is the main premise of the ICTY’s work?

In lieu of a quick answer or answers, let me begin with a quote from an old conversation with a Belgrade high schooler that’s fresh in my memory: “Legalists can win a battle or two with those in power, but they always lose the war. I am not naïve. I know that law is not the same as justice and that jurisprudence is not the same as morality. But the ICTY always serves and protects the West, not the Balkanians. There is simply no way out of this hypocrisy.” Let me also observe at the very beginning that realism vs. legalism is a rather narrow conceptualization of politics. The way I see it, what’s more fundamentally political about the work of the ICTY is how it deals with the problem of agency and other liberal dilemmas of governance (a common topic on this blog, just click on “Empire & Imperialism,” for example), the legitimacy of war (as Elizabeth, TDOT occasional contributor, considers in her excellent 2008 Millennium piece), and therefore the legitimacy of warring states and para-states. The last point, I think, refers to a problem that bothers most of my interlocutors most of the time, at least those who take the idea of reconciliation seriously (to say nothing of truth and reconciliation). I like this pithy paragraph from a 2006 piece by my buddy Edin:

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.

The last two sentences show the full extent of the dialectic between realism and legalism, to use above categories again. The ICTY’s mere existence tells you everything you need to know about the moral and political quality of contemporary Bosnia, Croatia, Kosovo, Macedonia, Montenegro and Serbia (I’ll deal with Slovenia later). The political-criminal networks that the ICTY has examined since its inception are symbiotic with the state and para-state structures that emerged from Yugoslavia’s dismemberment, but it would be “impossible” to put this claim under serious judicial scrutiny.  We just can’t X the ex-Yu – not via this or any other legal venue. This impossibility has a lot to do with, among other things, the power of state sovereignty, the end of liberal imperialism as well as the denial of the idea of collective guilt.  In other words, a decision to (temporarily?) normalize the ethnically purified political projects does not render the pursuit of transitional justice a folly. At the same time, it also suggests that the ICTY’s legalist triumphs can never really be measured outside its very limited jurisdiction. By accepting that some of the most criminal, ahem, political bargains made during the war cannot and must not be rescinded in the name of higher (or simply different) principles, the tribunal appears to have been hobbled from the start even from a relativist standpoint.

The court is biased

This statement has many authors, but its champions tend to be Serbian politicians. “The ICTY was founded to try the Serb people,” says Serbia’s current president Tomislav Nikolić. To engage this argument one must first of all engage in some essentializations.  When it comes to the indictee break-downs, everyone knows the basic proportion 10-3-1-1 or some variation on it. It’s like talking about those interwar naval arms control treaties. Out of 161, very roughly, 100 are Serbs, about 30 are Croats, then 10 about Bosniaks and Kosovar Albanians each, plus 2 Macedonians.  This brings the tally to 152, which seems about right if we keep in mind that nine indictees refused to “declare their nationality.” This is an important fact. The media uses “ethnicity” and, in the case of ex-Yugoslav media, “nationality” and “declared national belonging” to claim and disclaim bias, but the reports usually gloss over these small kinks in the narrative. If you read the history of modern “ethnic conflict” carefully, you will find out that sometimes the biggest criminals on the X side are in fact self-declared Ys or Zs. Also note that there has been effort to compile break-downs based on class, education, profession, and such (a couple of exceptions: I’ve seen media reports on the facts that Bosnians of all stripes are overrepresented, while Yugoslav Army officers were underrepresented – more on this below).

The ICTY website refuses to provide ethnicity stats in the at-a-glance form and the Wikipedia page is out-of-date, so it looks I’ll have to get dirty myself. As of this afternoon, proceedings have been completed for 136 indictees: 18 have been acquitted, 36 cases terminated either because indictments were withdrawn (20) or because the accused died, before (8) or after (8) transfer to The Hague. 13 were transferred from The Hague to national courts (though not those in Serbia; more on this below): 9 Serbs and 3 Croats. With 25 still on trial (the Appeals Chamber is busy looking at 13 individuals in 5 cases), this leaves 69: 48 seem to be Serbs, 14 seem to be Croats, 5 seem to be Bosniaks, one Macedonian as well as one Albanian. I say seem because I can’t stand these counts any more, though I am sure that there is no shortage of “accurate” counts on the web. Otherwise, feel free to do it yourself:

Most of the time, the point of ethnic head counts – the more creative break-downs of this type include official rank, total years sentenced, deaths (nay, say critics, assassinations!) in detention and in prison, etc. – is to demonstrate that the Serbs are “overrepresented” and then declare that the ICTY is “selective.” Whether this type of conclusion logically follows from this type of premise is debatable, but there is no doubt that the tribunal continues to be vulnerable to this particular criticism. One doesn’t have to be a Serb nationalist to do this type of math and then coast on rhetorical fumes about fairness.  But the Hague head count is not just a Serb nationalist pastime. If I am not mistaken, if we go by the recent Trial Chamber ruling in the Prlić et al case, the sum of ICTY verdicts suggests at the moment that only the Croat leaders engaged in what the tribunal calls the joint criminal enterprise (more on this below) to remove non-Croat population in the areas of Bosnia and Herzegovina such that they would be politically and demographically Croat-dominated. The person said to be responsible for orchestrating this plan is none other than Franjo Tudjman, the erstwhile father of the nation. Sure, many high-ranking Croat honchos were acquitted, but certainly not all of them (e.g., Mirko Norac), to say nothing of the “merciless” punishment of the political and military leaders of “Herceg-Bosna,” wartime Bosnia’s Croat para-state (e.g., Tihomir Blaškić, Dario Kordić). Multiple Serbs have been convicted for the biggest crimes, but note that the current ICTY’s book has Team Tudjman collectively plotting to dismember Bosnia, not Team Milošević.

These exchanges are tiresome. Accusations of bias are made in all sorts of judicial systems about all sorts of groups, and the conclusion is that the number of indictments and convictions is not a valid measurement on which to base such accusations. No less important, how can a legal tally in an international war crimes court ever be “equitable”? Value trade-offs and competing dynamics are always present (e.g., peace vs. justice, fairness vs. “prosecutorial discretion”), Archimedean dividing lines cannot be drawn, and zero-sum discourses lead nowhere. Also tiresome is the claim that “everyone was the same” and that “everyone should move on with their lives.” This is flat wrong: it denies the right to transitional justice, and it negates historical facts, even logic. Could the fact that Serbs were at war with most of their Western Balkan neighbours be related to the high number of Serb indictments and convictions? If we could somehow put numbers on the sums of all inhumane military-police actions; planned destruction of villages, cities, and communities; genocide, ethnic cleansing campaigns and organized displacements; murder, rape, torture,  plunder and cruel treatment perpetrated by the respective warring sides in the former Yugoslavia, what “numbers” do we think we would we get? Would they be radically different from the 10-3-1-1-.2-.2 formula or some other formula adjusted for variables like population proportionality and rough terrain? I wouldn’t be too surprised to see this type of modelling some day (one rumour has it that the U.S. State Department actually revealed one such formula in 1995 at Dayton, according to which “Serbs” were responsible for 70% of all criminal acts).

Back-and-forths on whether the court is anti-X or anti-Y are unlikely get anybody closer to justice, but they sometimes seem to be the only discourse about the ICTY, even among self-declared Yugoslav, cosmopolitan, and post-national types. One counterdiscursive intervention is to say that the tribunal’s job is to dish out individual verdicts (including viz. conspiring individuals), not to provide ethnic group therapy. This retort is tricky, however, since it basically contradicts just about every mission statement published by the ICTY since 1993 on the importance to set forth conditions for reconciliation, healing, closure and so on. Politically, then, essentialist and essentializing head counts seem to be important even if the tribunal and its supporters do not always understand or choose to recognize this fact. Maybe this is “just” a communication failure: who would want to debate angry Balkanians on their turf? Maybe the tribunal has a file with a bunch of excellent talking points somewhere but it hasn’t landed in the hands of local office representatives in the regions. Whatever the reason, the inability and/or unwillingness to respond to even the most hackneyed charges of bias has considerably hurt the ICTY’s reputation in the region.

The court is racist

This is not simply a version of the anti-Serb bias argument (I think Šešelj made this statement in the court once or twice, which should not be surprising as he has long exhausted every negative adjective in the dictionary to describe the court). Relative to other statements of problem discussed here, this one is rare – ex-Yugoslavs don’t use the terms race and racism all that much (another story altogether). What makes it perfectly intelligible, however, are rhetorical questions like these: Why, then, doesn’t the tribunal look into the crimes committed by UN personnel in Bosnia and Croatia? And what about NATO’s bombing campaign over Serbia, Montenegro, and Kosovo in 1999? Why can’t we ever see a couple of Western politicians on trial for war crimes and crimes against humanity?  Must it always be Šešo & Rašo?

These are good questions, and not in terms of their rhetorical value. The ICTY prides itself its accomplishments in codifying the crime of rape. This is Pablo’s number one subject of study (and not just Pablo’s), but I feel like adding a personal story. In 2001, I took a seminar in modern German history at the University Minnesota and I remember how we were discussing whether the ICTY’s focus on wartime sexual violence and gendered crimes would help historians – and so the rest of us – reassess these phenomena politically (the discussion began with Norman Naimark’s The Russians in Germany). I remember feeling very pleased with the ICTY in that moment. But I also remember expressing apprehension in class: why wouldn’t the tribunal investigate the crime of rape perpetuated in the same geographical area and in the same time period by UN soldiers? What is this thing called “UN immunity” anyway? Investigative groundwork had already been done by one or more special UN commissions (but the result of these investigations tends to be the same everywhere: dismissal of two dozen soldiers and a conclusion that the rapes were isolated cases), and jurisdiction could and should have been changed. The same can be said in relation to any number of known UN misdeeds in ex-Yu, starting with Srebrenica. As for the NATO bombing, in Serbia alone these attacks killed 500 civilians, including, let’s say for the sake of proper high politics, those 3 Chinese journalists. Carla Del Ponte, the former ICTY chief prosecutor, wrote in her memoir that investigations into NATO war crimes were ditched because of direct U.S. and British pressure (other sources say that it was she who dismissed the NATO case as pointless, and only after sitting on that file for months).

On one end of the (grossly simplified) continuum, the racism charge revolves around the discourse on what we later came to the responsibility to protect.  Here, “world leaders” ought to be held responsible for not stopping the massacres. “We do not have a dog in this fight” and “the lifting of the arms embargo would create a level killing field” are but two of the many phrases uttered by high-ranking American, British etc. officials that float as reminders that the “international community” (meaning America, Britain, etc.) could have done more if it wanted to. The reason why it did so little – or too little too late – is because its leaders believed that groups of people driven by “ancient hatreds” are not worth saving (variations of this argument cover Balkanophobia, Islamophobia, etc.). Or maybe because those leaders and their constituencies were directly or indirectly benefiting from the destruction (the argument covers anything from arms trade to the global North’s interest in destroying the great emancipatory project that was once Yugoslavia). By refusing to investigate Western malfeasance, the court draws a governing us vs. governed them line that is nothing but racist.

Anchoring the other end of the continuum are claims, articulated mainly but not exclusively by Šešelj types, that those same “world leaders” were driven by racialized anti-Serb hatred, which is why Serbia’s “military-police action” in its secessionist province was so quickly compared to the Holocaust, while the diplomatic solution offered to Serbia at Rambouillet made the Treaty of Brest-Litovsk look like a call for a kindergarten handshake. It is also why the international community did nothing when Kosovo Serbs later faced pogroms by Kosovo Albanians or, for that matter, during Croatia’s “military-policy action” against Serb secessionists in 1995, including those in Bosnia as well. This is why Serbs are the most displaced nationality in the postwar Yugosphere even when controlling for population proportionality. True, my interlocutor would say, we Serbs were idiots to televise our crimes and so make the job of the ICTY investigative teams easy, but this cannot explain why so many of our people are accused, judged and condemned; weren’t there twice as many ICTY investigative teams devoted to Serb crimes? Not just blatant double standards, but outright “demonization” and “satanization.”

When Macedonians (known in the Western media as “Macedonian Slavs”) are included in these claims, the object of putative racialized hatred becomes the entire Orthodox civilization. The “key piece of evidence” here is the case ofJohan Tarčulovski, a personal bodyguard of the president of Macedonia who got 12 years for this role in one village massacre. How draconian. Naser Orić, another one-time presidential bodyguard who also defended his village using similar methods, was acquitted. And what of Macedonian Albanian war crimes?

Positions like these can be very satisfying for those who hold them, but I find them to be generally unhelpful in conversations about the ICTY. Already in mid-1990s the writings of Vesna Goldsworthy, Milica Bakić-Hayden, Dubravka Ugrešić, Slavenka Drakulić and, especially, Maria Todorova have taught me that “Balkanism”, too, has helped create and maintain powerful racial formations in Europe and beyond. But the racisim charge is full of pitfalls – above and beyond the fact that it is now probably easier to actually be racist than to call something or someone racist. Let me mention but two. One is called conceptual stretching: Is everything racism? Is racism everything?  TDOT has worked on this subject a lot, and more posts are forthcoming, so I’ll skip this part.

The other pitfall is ignorance, wilful and otherwise. I’d like to reflect upon this one at some length, starting with another personal story. It’s titled “How I stopped loathing UN General Secretary General Boutros Boutros-Ghali.” In late 1992, Boutros-Ghali visited Sarajevo, then sixth months under siege, and flatly declared that Sarajevans had it “better than ten other places in the world” and that Bosnia was a “rich man’s war.” Hurtful, of course, but it was easy to dismiss the UN’s top official as an ignoramus. How could he not understand that an international intervention in Bosnia is eminently justifiable on the pragmatic grounds of, to use one of Tony Blair’s signature lines, when-you-can-you-should? Then, in 1994, I moved in one of those refugee welcome centers in Toronto, which gave me an opportunity to interact with chatty peers from places like Iraq and Somalia for the first time. Very quickly it became obvious that my war stories could never one-up theirs, which I took to mean that even some tragedies may in fact be more privileged than others.

What made the Yugoslav war so tragic in the eyes of the West – and, more importantly, in our own eyes – was that it was a European war. The 1999 Blair doctrine on humanitarian intervention, recall, made his view of the relationship between geography and ethics clear: “While we meet here in Chicago this evening, unspeakable things are happening in Europe.” Similar declarations were made, at one point or another in the 1990s, by political agents as diverse as the Dutch Labour, German Greens, French neo-liberals and, most crucially, both Bob Dole and Bill Clinton. Ex-Yugos, whatever their background, articulate all sorts of claims through this discourse, including a reasoned unwillingness to compare our tragedy with the one in Rwanda. Did any of our peoples suffer as much as the Tutsis did? This question is s a conversation stopper or at least a theme changer. It can also lead to ridicule (“Good one! Remember also that line from Tanović’s “No Man’s Land”: Ah, what mess in Rwanda!”) and regret (“Your abstractions are meant to provoke me and hurt my feelings.”)

Even if this type conversation were to summon empathy for the Tutsis (as well as sympathy for Rwanda’s transitional justice efforts), I doubt that it would have lead to an agreement that “Boutros-Ghali was not necessarily wrong.” Doesn’t this make “us” ignorant or hypocritical? Maybe, but it certainly suggests that one shouldn’t call the ICTY racist without first pausing over hundreds of racist crimes that the ICTY has been investigating and without reflecting on possible racializations in our own system of thought that reproduce global patterns of privilege, protection, and inequality (the oppressed must be able to recognize not only each other, the cliché goes, but also each other’s similarities and differences). Further, if race is a global structure, then it should be analyzed as such.  In addition to examining the role of Balkanism in the ICTY (Has anyone penned an ethnography of the court yet?), one must always keep looking further afield. Are functionally equivalent discourses operative in comparable institutions? Are the mechanics of prosecutorial discretion in the International Criminal Court racialized, and if so, how? The fact that the ICC seems to be opening cases in Africa and only in Africa has led many Africans – and not just African politicians under or fearing ICC investigation – to label the court “racist.” What do we make of this charge and how it relates to the same charge in the case of the ICTY? Is U.S. exemptionalism viz. the ICC racialized? How so? And so on – one good research question after another. I’ve written about this general problematique in a recent Cambridge Review of International Affairs paper, where I suggest that “we” (this time IR-ists and other students of the global colour line) must challenge the convention of studying individual institutional racialization in isolation from the wider whole and the broader conceptual universe that encompasses items such the “racial contract,” “ethnorace”  and “racial habits.”