Guilt, Responsibility, and Denial. Eric Gordy
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Law
Most international interest concentrates on the commission of war crimes and crimes against humanity in the wars of succession from 1991 onward. This is reflected in the founding of ICTY, the one international institution most involved in investigating and prosecuting these crimes. It is also reflected in the subsequent founding of special courts and prosecutors for war crimes in the countries of the former Yugoslavia.25
ICTY is obligated by its statute to investigate and prosecute three types of offenses: war crimes, crimes against humanity,26 and genocide. The UN resolution that established the Tribunal sets forth as its principal goals “to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,” and also to “contribute to the restoration and maintenance of peace.”27
When Slobodan Milošević was arrested in April 2001, there existed an international charge for war crimes and crimes against humanity against him and four other political and military leaders of Serbia in connection with one incident—a massacre of civilians in the Kosovo town of Račak (Reçak) in January 1999. After his arrest the indictment against him was revised to include charges of genocide. Charges of genocide were filed against a number of wartime political and military leaders of the Serb entity in Bosnia-Herzegovina,28 but have not been applied to the leadership of the Serbian regime with the exception of Milošević.29
Political leaders from the war period may have believed that they could escape prosecution and persuade the public that their crimes were, if not themselves legitimate, committed in a context that made them retrospectively legitimate. Such a conclusion is suggested by the behavior of Milošević on his arrest in 2001. At that moment both international and domestic prosecutors discussed the possibility of wide-ranging charges being laid against him. But the only charges that had actually been filed were ICTY’s charges for the Račak massacre and a set of domestic charges for abuse of an official position for political power and personal gain. Milošević himself opened the door to new domestic and international war crimes charges in an appeal filed shortly after his arrest The appeal denies diverting money from the state budget for personal gain, claiming instead that any diverted money was secretly used to finance paramilitaries in Bosnia-Herzegovina and Croatia and to supply SRJ state security services.30 This constituted an invitation for questions about direct connections between his regime and the organizations that had proximate responsibility for international crimes to be brought into the legal procedures against Milošević. Milošević’s appeal claimed a level of state involvement that he had always denied while he was in power, with implications both for the character of the “joint criminal enterprise” to violate international humanitarian law and for the civil suits brought by Croatia and Bosnia-Herzegovina against SRJ.
In terms of criminal liability under international law, the incidents of greatest interest are the following:
1. Massacres of the civilian population. The largest massacre occurred in Srebrenica in 1995, when forces under the command of Bosnian Serb general Ratko Mladić, after conquering the town, rounded up and murdered at least 7,000 residents. Three military officers have also been charged with the massacre of about 300 civilians who took refuge in a hospital outside Vukovar in Croatia in 1991. They were tried and retried several times in domestic courts before a verdict was reached by ICTY, while a local politician accused of complicity in the massacre committed suicide in prison in 1998.
2. War against civilian populations. Several cities were besieged during the wars, the best-known cases being Vukovar, which was almost completely demolished by bombing in 1991, and Sarajevo, which was the object of constant sniper and missile attacks between 1992 and 1995. Attacks not demonstrably related to any military objective were made against other cities, including Tuzla and Dubrovnik, as well. Charges of this nature can also be applied for less concentrated and smaller-scale incidents, such as destruction of property after taking a territory or with the goal of intimidating residents of an area.
3. Measures designed to forcibly change the ethnic structure of a local population. These include forced resettlement, intimidation, imprisonment, and also murder. All these means were used to force members of different ethnic groups to relocate, creating monoethnic territories, especially in Bosnia-Herzegovina in 1992–1993, in Croatia in 1995, and in Kosovo by one side in 1999, and by another side afterward. These are the actions for which the distasteful, imprecise, and distressingly widespread term “ethnic cleansing” was invented.31
4. Murder, rape, and torture of prisoners. Several prison and relocation camps in Bosnia-Herzegovina became known for the abuse of prisoners, and some of these have already become the subject of prosecutions. The ICTY’s earliest, largest, and most complex cases included prosecutions against people suspected of abuses at the KP Dom Foča, Omarska, Trnopolje, and Keraterm camps. In one of the first cases to be prosecuted against Bosnian Muslim forces, three people were convicted of murder and war crimes (but not crimes against humanity) in connection with atrocities at the Čelebići camp in 1992.
Violations of Domestic Law
Especially in the months just following the removal of Milošević from power in 2000, considerable attention was paid to revelations regarding abuses of power for personal and financial gain. These included the distribution of state property in the form of luxurious houses and apartments, manipulation of the banking and currency exchange systems, and corruption in connection with the sale and privatization of state-owned corporations. Charges concentrated heavily on a few figures who are widely considered to have been the main exponents of regime corruption: former premier Mirko Marjanović,32 former deputy premier Nikola Šainović,33 former customs director Mihalj Kertesz,34 and others.35 A few cases went to trial: Kertesz was tried for diverting public funds through offshore banks, and the Karić brothers, who built a business, banking, and media empire through regime patronage, were eventually compelled to leave the country. Milošević’s wife Mirjana Marković was charged, together with her daughter Marija, with minor real estate offenses (as she has been in hiding she has not formally answered the charges).36 Like other charges not directly related to acts of violence, it is entirely possible that behind the prosecutions and threats of prosecutions may lie other motives: either to assure compliance or to persuade the accused profiteers to give evidence against more important figures, perhaps for more serious crimes. Over time, the impressive corruption of succeeding regimes has come cumulatively to present a barrier to prosecution of cases of this type.
Members of the regime also conspired to falsify election results, the most controversial being the local elections of November 1996 and the presidential and parliamentary elections of September 2000. Both elections were followed by massive protests. After the 1996 elections, the regime was forced to pass a “special law” recognizing the results, which it had earlier declared invalid when it discovered the opposition had won. In 2000, the regime tried first to declare victory, then to force a second round, and finally to nullify the election results. This effort was stopped by massive protests in October 2000, which forced Milošević to resign.
Among the most widely publicized acts of domestic political violence in the Milošević regime are the murder of newspaper editor SlavkoĆuruvija in 1999,37 the attempted murder of politician Vuk Drašković (four people were killed in the attempt) in 1999,38 the murder of organized crime figure Željko Ražnatovic-Arkan in 2000,39 and the kidnapping and murder of former president Ivan Stambolić40 in 2000. In addition to these, attention is occasionally drawn to several acts of ethnic violence committed or organized within the borders of Serbia: the kidnapping and murder of nineteen ethnic Muslim passengers from the Belgrade-Bar railway at Štrpci in 1993,41 the intimidation and expulsion of ethnic Croatian residents of the village of Hrtkovci in 1992,42 and the kidnapping and murder of seventeen ethnic Muslim passengers from a bus in the village of Sjeverin in 1992.43
All the crimes ICTY can prosecute are also crimes under the Criminal Code of Serbia. The domestic Criminal Code also includes some charges ICTY does not have the authority to level, such as promoting ethnic and religious hatred, aggression, and crimes against peace.44 Charges of “provoking public danger”