Chapter 4

      Approaches to Guilt

      As long as the Milošević regime controlled most media in Serbia, denial and claims of victimization were the most generally available perspectives on guilt. In other countries of the former Yugoslavia, rejection of the possibility that crimes were committed constituted, at least for some people, an essential part of national identity and national pride.¹ Two weeks after Slobodan Milošević was sent to face trial in The Hague, ICTY presented the government of neighboring Croatia with indictments against two army generals, Rahim Ademi and Ante Gotovina. After a bitter political debate, the government accepted the indictments and agreed that the accused would be delivered for trial. However, just as large displays of public sympathy in Croatia in February 2001 interfered with the arrest and trial of General Mirko Norac, accused of the massacre of Serb civilians around Gospić in 1991,² in July there were also indications of a current of denial in public opinion.³ A group of ten prominent Croatian athletes, led by the tennis champion Goran Ivanišević, published an open letter against the indictments, declaring: “This is an effort to alter the fact of who is the victim and who is the aggressor. The only truth is that Croatia was the victim, and its generals and soldiers were heroes.”⁴

      The position advocated by the athletes had considerable resonance in public opinion,⁵ though it was not the position of a series of Croatian governments. President Ivo Josipović and his predecessor Stjepan Mesić have been outspoken in advocating for the need to acknowledge and try crimes committed by Croatian forces. However, for states whose legitimacy derives in part from the celebration of their wars for independence, the argument over responsibility represents an ongoing source of controversy. Recognition of the guilt of people who committed crimes risks calling into question the wars that were fought and the independence that was gained through them.

      The legitimacy of Serbia’s statehood depends far less on perception of the aims of the wars as legitimate (though the legitimacy of the Bosnian Serb entity depends on this very much indeed). Serbia neither gained nor fought for independence, but was an entity from which other states declared independence—a condition that strengthened security in the continuity of Serbia’s statehood while undermining its prestige as a state. There is less motivation to advance positions like those advocated by the group of Croatian athletes discussed above. This perversely fortuitous circumstance, combined with the passage of time and the widespread diffusion of evidence of violations, has meant that the position that there is no guilt to be assigned is held by a vocal but diminishing minority.

      An early challenge to the consensus of denial came with the broadcast of the BBC-produced documentary A Cry from the Grave, about the 1995 massacre in Srebrenica. The film had been shown a few times in private showings to small audiences in Belgrade, and in 2001 was broadcast on the independent B92 television station (launched to supplement the radio station in October 2000), to controversial reception.⁶ In July 2001, three months after Milošević was delivered to The Hague, the documentary was broadcast on the state RTS television network, to a considerably larger audience. An exchange in the Serbian parliament followed the broadcast, with Branislav Ivković, a leader of Milošević’s Socialist Party of Serbia (SPS), accusing B92 and RTS of selectively ignoring crimes, and of broadcasting exclusively “propaganda” aimed at “establishing a feeling of shame and embarrassment among the Serbian people.” But after watching the film even Ivković backtracked from this position. When asked by a reporter whether he thought the massacre in Srebrenica did not in fact take place, he replied that he “allowed that there were crimes.”⁷ While this was not much of an admission, it came from the chief representative of the political party from whose ranks ICTY’s most prominent indictee came, and suggested that even Milošević’s supporters could be receptive to new information.

      Similar conclusions could be suggested on the basis of a (nonrandom sample telephone) survey conducted in July 2001 by the weekly magazine NIN. Although only 36.5 percent of respondents supported the decision to send Milošević to The Hague, 57.5 percent agreed that he was responsible for war crimes. Among the main objections to Milošević’s extradition were the hurried manner in which it was carried out,⁸ the compromising timing of the act,⁹ and the belief that an international trial would make it impossible to bring Milošević to account for domestic crimes.¹⁰

      While the change of regime and the increased availability of information may have encouraged a higher level of readiness to address questions of guilt, the question remained as to how. This chapter discusses the main mechanisms that have been used for establishing guilt and affirming responsibility in the wars of Yugoslav succession: national courts in the countries involved, international courts and tribunals, and “truth commissions.”

       The Role of National Courts

      Clearly the domestic judicial institutions of the countries where violations of international law were committed play an important role in addressing guilt for those crimes. There are no crimes in the statute of ICTY or ICC that are not also crimes under the criminal codes of all the successor states to Yugoslavia (as they are in the criminal codes of every UN member state). The Hague and Geneva Conventions on the conduct of war are also binding on all combatants. Toward the beginning of the wars in October 1991, the Yugoslav army issued a declaration detailing its recognition of the obligations imposed by the Hague and Geneva Conventions.¹¹ A joint declaration of the warring parties in the Croatian conflict and the International Committee of the Red Cross in 1991 detailed obligations under the two conventions, and the three warring parties in Bosnia-Herzegovina signed a similar joint declaration in 1992.¹² Combatants demonstrated their recognition of the authority of international law in indirect ways as well: Vasiljević tells of a discharged paramilitary fighter in the Bosnian War who was issued a document declaring that he “participated in the struggles for the liberation of the Serbian territory of Zvornik and did not participate in any criminal activities.”¹³

      Obviously these agreements and declarations did not achieve much in terms of actually preventing violations.¹⁴ On the contrary, a tremendous abyss between the public rhetoric of political leaders and the actual behavior of their administrative and military forces was apparent throughout the wars. The declarations do show, however, that at no time during the wars could the leaders of any state or entity claim that they were unaware of or did not recognize their obligations under international law. These obligations were not imposed, but derived from domestic law, from agreements voluntarily signed by the combatants, and from declarations made openly by the combatants. Among the obligations are the duties to prevent violations and to record and punish violations.

      If one factor contributed more than others to the involvement of international organizations and the United Nations in the wars of Yugoslav succession, it was the failure of the warring parties to meet the obligations they had recognized under international law. Not only were violations not prevented, they were committed at a level that both aroused international concern and appeared to represent state policy.¹⁵

      The story of information gathering, prosecution,