Guilt, Responsibility, and Denial. Eric Gordy
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failing to remove his employees from RTS headquarters when it was bombed in 1999.45
The various elements of corruption, fraud, theft, and violence could possibly to be tied together into a wide-ranging charge of conspiracy—defining the parties in power during the Milošević regime and their associates as constituting a criminal organization responsible for corruption, fraud, political violence, and war crimes. While accountability for war crimes in Kosovo that were committed by police and military forces falls under direct chain of command, accountability for similar crimes in Croatia and Bosnia-Herzegovina might be limited to financing the organizations that committed them,46 unless evidence of more direct connections is revealed.47
There may indeed exist a temptation to consider conspiracy prosecutions of this sort, not least because it seems obvious that the regime’s domestic and international abuses were linked. However, the (limited) previous experience of using conspiracy theories in international trials has been mixed. The International Military Tribunal at Nuremberg rejected conspiracy as a basis of prosecution. But conspiracy was the principal basis of prosecution at the Tokyo Tribunal. This led to some convictions that could easily be considered miscarriages of justice. For example, Hirota Koki was sentenced to death for conspiracy to wage aggressive war on the basis of his membership in Japan’s Cabinet (foreign minister between 1933 and 1936, prime minister in 1936 and 1937, and foreign minister again in 1937 and 1938), and despite the fact that as a politician he opposed the actions for which he was prosecuted. Similarly, General Yamashita Tomoyuki was sentenced to death for atrocities committed by troops under his command in the Philippines in 1944, despite convincing evidence that he neither knew about the atrocities nor was able to communicate with his troops at the time. The same standard was applied against Generals Kimura Heitaro and Muto Akira, who were also sentenced to death.48 The Tokyo Tribunal’s use of conspiracy as a basis of prosecution undoubtedly led to great efficiency in the prosecution and conviction of suspects. But this efficiency came at the cost of the Tribunal’s credibility, and probably did much to prevent serious public engagement with issues of responsibility in Japan.
A further obstacle to wide-ranging prosecution of figures from the Milošević regime in Serbia is that the regime never entirely left power. In June 2008, following parliamentary elections that produced a protracted coalition crisis, the party formerly chaired by Milošević joined the governing coalition led by the Democratic Party. A number of figures from the Milošević period found themselves occupying high public office again. The leaders of the parties sought for a time to portray the coalition as a sign of reconciliation between the opposed forces of the previous decade.49
Why Establish Anyone’s Guilt?
The smell of corpses from the freezer truck found at Tekija, buried long ago in the capital city, is spreading through Serbian public space and offers a shocking reminder of what everybody who had a grain of conscience in this country already knew: war crimes were committed (also) in Kosovo. They were not incidents, but official policy, the realization of which included the leading figures of the military-police establishment. Their Rashomon over the last week demonstrates that (yet) another horrifying neologism—“reclamation of the terrain” [asanacija terena]—was the work of the state, like the killing.50
The investigations and arrests of leading figures from the Milošević regime, including Milošević himself, marked a turning point brought about by a combination of forces, including public opinion, international pressure, and the early actions of the post-2000 Serbian government. Another turning point came about through a combination of chance and orchestration, in the interaction between silenced local knowledge, a minor local media outlet, and a window of opportunity. Information became public about an incident in 1999, when a local resident witnessed a freezer truck being pushed into the Danube River near the eastern Serbian town of Tekija. A diver engaged to investigate found the truck; police opened it to find it full of human corpses. The interior ministry instructed the police not to investigate, warned prosecutors that a “state secret” was in question, and ordered the bodies to be removed and destroyed or hidden in another place.51 The truck itself was destroyed by police at Petrovo Selo.52 While many local people certainly knew about the freezer truck,53 police did not investigate and media did not report the incident until two years later, when an article in the local Timočka krimi revija (Timok Crime Review) was picked up by national, and eventually international, media. Not long after, police began to release information about a program to destroy evidence of massacres in Kosovo, under the code name “Depths 2,”54 and to declare that evidence traced the program directly to the commanders of the police and military and to Slobodan Milošević personally. Over the next month, more burial sites of massacre victims were “discovered.”
If the case were only a question of establishing that massacres took place and that evidence was destroyed, its main significance would be legal. Probably its principal legal effect in Serbia was to force prosecutors to begin reconsidering the decision not to charge Milošević and his associates with war-related crimes (otherwise there was a distinct political preference for less controversial corruption charges). It may well have compelled the government to consider the domestic capacity to try such cases and opt for ICTY’s capacity instead.
The main significance of the case, though, probably lay in the way it brought war crimes into public discussion. As the investigation began, interior minister Dušan Mihajlović declared, “I think that this case will give a completely different picture of our so-called patriots.”55 The popular commentator Stojan Cerović, who had been arguing in his weekly column against cooperation with ICTY in the preceding months, dramatically revised his assessment:
If we want to avoid the Hague Tribunal, the reason can absolutely not be that we do not believe that crimes were committed—because we can see the evidence swimming to the surface—nor that we think we have some justification—like that other people did the same thing—because we do not believe those justifications ourselves. What I mean is that, to the extent that we have any kind of moral sensibility at all, it is not possible to paper this sort of thing over, even if no earthly judge were ever to find out about it….
If in this case we do not find the guilty parties and do not think about their punishment, then no court in the world, not even The Hague, can help us. It would mean we as a society have already been punished by being sent back to Edenic moral idiocy [beslovesnost]. Or if you prefer local mythology, it would mean that we have lost both of the kingdoms mentioned in relation to Kosovo.56
It appeared briefly that the “freezer truck case” might be the incident that would finally make denial of crimes impossible, finally make the connection between the Milošević regime and the crimes obvious, and force public examination of responsibility to begin. This would have meant that the first half of 2001 would have seen the arrest of Milošević, marking the break with the period in which his authority was feared, and the “freezer truck case,” marking the break with the period of reflexive denial. Instead this case became simply the first of several that seemed to signal a major turning point, in which initial publicity offered the possibility that new recognitions would spur a new type of public discussion, but in which shock turned into relativization, and relativization to a space between silence and denial. A similar pattern would recur after the extradition of Milošević, the murder of prime minister Zoran Djindjić, and the release of the “Scorpions” film showing paramilitary units participating in the Srebrenica killings. Once the freezer truck was out of the river, more information could flow, but the currents remained complex.
A debate ensued about who should be prosecuted in the “freezer truck case.” A rhetorical war began to be fought between the police and the military, mostly in the form of alternating statements to the press, about whether spokespeople for any one force had accused the other force of involvement. Government spokespeople mentioned the case when arguing in favor of cooperation with ICTY, especially in June 2001 when the issue of a law regulating cooperation began to divide the parties that made up the federal government. Whether because of the revelations from Tekija or other factors (such as the conditional character of financial assistance), talk of both domestic and international prosecution began to sound more normal after the revelations. In