Review of International Affairs, VOL. LV, No. 1114, April

Trials in Serbia: Historical
and Comparative Significance

Ðorđe Ðorđević

Associate of the United Nations Development Program (UNDP), Belgrade

The approval of the Turkish Ministry of Culture to show film Ararat by Canadian director of Armenian origin Atom Egoyan in Turkey two years ago was met with an outbreak of protests and public debates on the freedom of speech in the country. The film presents the Turkish army’s massacre and expulsion, backed by the Young Turks, of several million of Armenians in 1915. The decision to allow the distribution of the film about the country’s past, which has, until then, been systematically denied, was in line with Turkey’s efforts to move closer to European standards and to strengthen the country’s chances for integration into the European institutions. Its attempt to move closer to remembrance was followed closely by the rest of the world and it still remains to be seen whether distributors would ever release the film to the broad public, taking into consideration the pressure imposed by nationalist parties that used the event for their own promotion.

The Turkish authorities were not alone in believeing that this episode could be swept under the carpet by forgetting the history all together. Some years earlier, a voice was heared in the heart of Europe that belonged to the man who believed that those unpunished crimes give an absolute priority to the rule of force over justice: “The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by these means that we shall obtain the vital living space that we need. Who today still speaks of the massacre of the Armenians?”1 This is what Adolf Hitler said to his Wehrmacht Commanders-in-chief a month before World War II started in 1939. The events that followed had completely changed our understanding of the term humanity and the imperativeness of a legal act that would adequately cope with the most serious attacks against human beings and their dignity in circumstances of war.

Only a few years before the genocide of Armenians took place, American philosopher of Spanish origin George Santayana started promoting an idea to which he, probably, owes the most for getting his own place in history. The idea is simple but it had turned out that it had far-reaching consequences by claiming that “those who cannot remember the past are condemned to repeat it.” Starting from this assumption, reexamination of a traumatic past has now become an imperative in developing democracies regardless of whether the countries in question are industrial, underdeveloped or in transition. Different types of reexamination of war experiences among communities are almost inexhaustible – from the recent report of the committee for truth and reconciliation in Peru, the public debate on the commanding role of former U.S. senator Bob Kerry in the murder of a group of civilians in the Vietnam war, the role of former U.S. secretary of state Henry Kissinger in several local conflicts during the Cold War, the broad debate on the role of collaborators and Henri-Philippe Petain’s government during the Nazi occupation, as well as of that of the French army during their occupation of Algeria, to the unique South African experience with the transitional justice in overcoming the heritage of apartheid, the setting up of special courts for war crimes in Sierra Leone and in East Timor under the auspices of the United Nations, the development of the technical most modern documentation center on the period in Cambodia’s history that deals with the so-called ’killing fields,’ and the modalities of the apology and reparations by the Japanese authorities for the conduct of Japanese soldiers during their occupation of Korea in World War II, just to list some of them.

At the same time, challenges of such a confrontation cannot be ignored anywhere. Different forms of resistance often get diminished with time, but it has turned out that every postponement has far-reaching consequences on the democratic development of a country, its inclusion in regional and world processes and prevention of future conflicts. Western Balkan countries have their own experience to offer, because it seems indisputable that the 1990s events were marked with earlier antagonism in the wars that had never been fully illuminated so as to be able to penetrate into one or more forms of common awareness and active memory.

War crime trials always represent the very core of the process in facing up with the past. With this act, a post-conflict community stresses the strength and significance of its legal institutions, reaffirms its statehood and readiness to build this statehood on the rule of law. This is primarily evident in addressing the most serious cases of law violation in the period before transition processes and reintegration into the internatio-nal community.

With this act also begins the addressing of the protection of victims and their rights, who could otherwise resort to a course of action outside the legal framework. So, legal proceedings are the best and the most logical way of closing the endless circle of violence and retaliation which are the traits of all conflicts. Besides, war crime trials are the prerequisite for other forms of dealing with the traumatic past, including systematic documenting of events, oral testimonies offered by a wider number of participants and direct observers, work on reconciliation and the study of history.

The first trial for war crimes in this country will start before the ‘Special Court for War Crimes’ in Belgrade on March 9 this year. On this occasion, the Office of the Prosecutor decided to introduce the bill of indictment in the first case before the court, for the “Ovcara” case, including its strategic guidelines for action. At this juncture, it would be useful to review the experience of others in legal processing of war crimes in order to have better understanding of the process in Serbia. Such deliberations could help comprehend the challenges that are before us and determine realistic expectations relating to the necessary limitations of a legal proceeding.

Why a ’Special’ Court?

Recently, there have been some doubts in Serbia about the need to set up the Special Court that would process only war crimes and offenders who are involved in organized crime networks. There were comments that the existing district courts could handle those trials, because they are, under the criminal code, fully authorized to deal with them. That way, additional expenses for technical support (which mostly came from foreign donors) and professional capacity of judicial institutions would have beeen avoided.

Despite those comments, it is the international practice in most cases to give special treatment to war crime trials. This can be done in the form of special judicial forums within the supreme court, as it was done in Leipzig in 1921 in the case of the German army crimes committed during World War I. A more common alternative are special domestic institutions, as was the practice in the post-Nuremberg war crimes trials in Germany, post-war trials in countries that were under the German occupation, including Yugoslavia, and the trial of Adolf Eichmann in Israel. When this is impossible due to ongoing war activities, uncertain post-war situation, lack of readiness on behalf of state organs or inadequate skills of domestic judiciary to match legal challenges, mixed domestic and international courts are being set up, which is the case in Kosovo under the auspices of UNMIK. For example, the Special Court in Sierra Leone will start its first trial of the nine accused for crimes against humanity only a day after the court in Belgrade begins its work. The Special Panels for Serious Crimes in East Timor are now discussing their most serious indictment against retired Indonesian General Wiranto. The “Extraordinary Court” for crimes committed during the Khmer Rouge regime in Cambodia is scheduled to start its trials this year, while the exact form of trial of Saddam Hussein and the Baath party leadership will soon be decided. There are also institutions set up by international organizations, as was the case with the Nuremberg Tribunal, the International Criminal Tribunals for the former Yugoslavia and Rwanda, which are the forerunners of the permanent International Criminal Court, also based in the Hague, expected to soon issue its first indictments. In this case, international legal and technical expertise, as well as direct exchange of experience, can be of additional use. In addition, as many as 24 different countries worldwide had or still have parallel or entirely separate truth and reconciliation commissions, which deal with gross human rights violations committed in the past on a specified territory and in specified timeframe. As a rule, these commissions are of a quasi-legal format and in some cases, as a consequence, they have a power to issue exemptions and recommendations for criminal prosecution.

Although the above comments on the special quality of courts are correct from the point of view of the overall performance of the judiciary, we should not fail to observe the specific legal needs and social conditions that such trials require in technical, legal and communications capacities. Compared to the work of courts under other circumstances, the warcrimes trials often require documentation during the investigative procedure and testimony of individuals from other countries. As we already know, the court also has to secure a certain level of witness protection that requires special technical conditions, which are not always available in the already existing district courts. A certain level of legal competence is also required since judgment of conduct in war conditions is based on a number of international conventionsrelated to the rules of war. An ability to harmonize international regulations with domestic laws and practice is also expected. Above all, trials like these always attract the attention of the public, and require addressing the potential practical problems in communicating with the media representatives There is also a need to introduce a position of a spokesperson for the prosecution and the chambers who will effectively provide reliable information on the work of the court.

Legal or Political Challenge

Another question we need to ask is about a broader importance and potential difficulties of the court, and whether something can be learned in this area from international experience. In an attempt to generally re-cognize the problems, Gary Jonathan Bass poses the following question at the end of his extensive study on the most famous trials for war crimes in the volume Stay the Hand of Vengeance “ Do war crimes tribunals work?” and claims: “The only serious answer is: compared to what? No, war crimes trials do not work particularly well. But they have clear potential to work, and to work much better than anything else [politicians] have come up with at the end of a war.”2 Legal solutions make sense and become important only when they are compared to the practice of political interventions, either domestic or international. There is very little among the political solutions that any community would wish for. In this sense we can discover a variety of policies, starting from active work on forgetting, giving a hero status and asking for impunity for those who committed war crimes to calls for retaliation against political and state entities, or collective punishment of the whole communities. Although in many cases the expectations of victims and their families, as well as of all those who support the rule of law, are not fully met, a trial is claimed to be a superior solution. Often, the course of a trial can also depend on extrajudicial decisions. Thus, political pressures and a lack of will on the part of the state bodies to offer logistic support may induce the collapse of the whole process. This was the fate of the early attempts at the trials in Leipzig and Constantinople in 1919 for the expulsion of Armenians, under the pressure of Great Britain. In other cases, the prosecutors’ inefficiency in raising indictments and unnecessary delays in the proceedings may cause a decrease of public interest and consequently political will to bring these trials to a logical end.

Every special court has to face a certain number of specific problems, and the Office of Prosecutor in Belgrade will be no exception in this regard. This primarily applies to the command responsibility issue, which is not clearly defined by national laws, setting the legal points of reference in respect of the adequate measures in witness protection mechanisms and admissibility of evidence processed in other courts including theInternational Criminal Tribunal for the former Yugoslavia.

Also, there is an evident shift of focus and the so-called “narrative” of a trial in the modern practice of the prosecution authority for war crimes. In the traditional court drama, the defendant, i.e. the potential perpetrator, is the main actor of the trial. The attention focuses on his or her personal history, socio-political circumstances of the act and the circumstances relating to the indivi-dual while committing the act. The only task court has is to establish his/her guilt or absence of any guilt. In the process, personalities and suffering of those whose rights had been violated are often neglected in a most brutal way during a presentation of events to the public. In the past, in order to prevent perpetrators from getting the above attention, representatives of victims’ communities assassinated perpetrators and surrendered to the police in order to be able to represent the victims in trials. This happened in Berlin in 1921, when Armenian Salomon Tahliryan killed Young Turk leader Talaat Bey, and in Paris in 1926, when Jew Schwarzbard assassinated former Ukraine army officer Simon Petlyur for the 1917-1920 pogroms of Jews. In view of all this, present day prosecution often takes the role of reminding of the victims and protecting their integrity. This can be done in a form of insisting on listing their names during a trial in a dignified manner, reminding of their personalities and social roles, as well as circumstances under which they were killed, defending their integrity from unjustifiable attacks, etc.

The Office of the Prosecutor of the Special Court in Belgrade will also invest efforts to adjust to the above international practice in processing war crimes. It will have to cope with a significant number of both legal and political challenges. Some of them are built in the very practice of war crimes trials while other are of a more recent date and of local character. However, most of the potential obstacles that Serbia will face in processing war crimes are to be found in the practice of other countries.

Aspects of war as a collective conflict

Another question is in what sense trials in Serbia are important in presenting the role of communities in war events. By the very definition, war is a conflict between states, larger groups or collectives, thus producing exceptional damage and human loss. In this sense, the activity of an individual is often viewed in the function of the goals of one side in the conflict. However, this does not automatically imply that all available means are at our disposal, from either legal or moral point of view. For example, Michael Walzer showed on historic examples that, in practice, moral issues are a necessary part of military strategy even in conditions when decision-makers are not fully aware of the legal provisions that regulate war conduct or if such explicit provisions do not exist. Also acting within a collective conflict does not imply that acts of commanders and executors necessarily comply with the goals, interests and ethical norms of the community they belong to, thus pinning the guilt equally on all members of that community. For that reason, international and, with this, national laws of war have undergone an important evolution.

Up until the World War II, international laws were strictly concerned with relations among states and not with those among individuals, which is in keeping with the inviolable sovereignty principle. Following an armed conflict, policies of punishment were usually applied to the entire community that had lost the war, while national courts were given the authority to prosecute individuals, who, as a rule, escaped unpunished. A historical turning point was made with the Nurmberg principles by setting the bases for all modern trials of individuals (and, in some cases, of organization) and not of a state. This reversal was largely a result of historical circumstances, for as late as September 1944, during the Quebec conference, the allies developed a plan for postwar Germany, which anticipated as a puni-shment reduction of Germany to a “pastoral level” i.e. systematic destruction of all industrial potentials of the country, including summary killings of a significant number Nazis (according to some sources up to 2500). Whatever the case, in the end, a legal solution prevailed over the political one and it had become the standard for addressing the problems of war crimes that followed.

The lesson learned from this experience is that in legal, and according to many, also moral sense, guilt can only be individual and never collective, because no one can be guilty of something he/she had never committed. For example, feeling guilty for something one has no part in is of no legal importance. Unlike guilt, responsibility is something that is relating to what is done on behalf of an individual as a community member, because we all belong, whether we like it or not, to a state, national or ethnic community. It is a question of political and not of a legal responsibility. Assuming this kind of reponsibility implies, among other things, a fair treatment of all crimes equally, regardless of the affinity towards the community someone belongs to. This means a recognition of the extent and seriousness of all individual crimes committed in one’s name. In a broader sense, accepting this responsibility means also a principled support to all efforts to secure a fair trial to all law violators from one’s own political community.

It follows, therefore, that all claims that the proof of guilt of a single individual of a community, no matter how prominent he/she is, casts a stain of guilt on all members of the same community is contrary to the logic of post-Nurmberg trials. Indeed, this tactics of crime relativization is not new at all and is almost always present at those trials. Back in 1946, Hannah Arendt offered a detailed analysis of the systematic way Himmler and the Nazi machinery used in their attempt to include the broader population of Germany into their undertaking and to erase all traces of resistance to their movement within Germany from the moment the defeat seemed innevitable. They went so far as to forge documents that would compromise the already verified anti-Fascists, but who were out of regime’s reach. This way, all Germans would have been identified with Nazis and the individual guilt of the Holocaust architects themselves would seemed equal to the guilt of an ordinary German.

The task of the Belgrade Court, and any other court of the kind, is not to determine or make an assessment of the wider socio-political events on this territory in the 1990s. This should be left to historians or, perhaps, to some future truth commissions. Also, the Belgrade Court’s is unlikely to exert any influence on litigation proceedings between Bosnia and Herzegovina and Croatia against FRY before the International Court of Justice. By definition, in the Hague Tribunal’s jurisdiction are the most serious violators of human rights, involving genocide accusations, while the domestic court will deal with ’minor’ offenders. There are also different views among experts on whether decisions of the Internationa Criminal Tribunal for the former Yugoslavia would influence the work of the ICJ and to what extent.

The role of the public

The above shows that facing the past is not a simple process and it does not happen overnight. If the Nurmberg trials are understood as a model of a successful trial for all its numerous legal oversights, it did not lead suddenly to the degree of understanding of the danger of a collective use of violence that exists among Germans today. It took more than twenty years, starting from the Frankfurt Auschwitz trial in 1963-1965, for the German community to start asking questions on its own about the Nazi past. This is partly owing to international circumstances: the partition of Germany, the Cold War atmosphere that did not favor opening of the issues of the past, as well as the initial disbelief among many observers in their attemt to accept and simply digest the idea of the sufferings such as those that took place in Auschwitz or Buchenwald. In spite of that, in retrospect, Nuremberg produced a significant impact.. Apart from crucial improvements of the international criminal code, certain provisions of the Nuremberg principle had been incorporated into the constitutional framework of the Federal Republic of Germany, the German administration of justice had largely profited from this experience, while the trial documentation still remains the basis for many historical studies. Perhaps the most important of it all is that Nuremberg has gradually become a symbolic moment of recalling the past in the minds of Germans.

The history of Germany was certainly not mentioned here for the sake of comparing the contents of the past that can definitely not be compared. Historical circumstance arranged for us to experience the next significant headway of the international humanitarian law precisely through the Hague Tribunal. Through the work of the Tribunal we developed a new set of international legislations in this field and gathered a large body of experience in dealing with legal and technical issues. This gave the trials for war crimes in the former Yugoslavia a historic importance and a special attention of the international public. The ICTY experience can now be passed on to the permanent International Criminal Court on a global level, and to the Special Court in Belgrade on the local level, as well as to all future courts of the same kind. The Prosecutor’s Office of the Special Court would like to get involved in acquiring knowledge from other judiciary in transition all around the world and wishes to convey its experience and expertise to other judicial institutions in Serbia.

As the work of the Hague Tribunal is slowly approaching its end, with issuing the last indictments by the end of this year, it is now up to Serbia to deal with its unpleasant past. The cold war is over and the inhabitants of the “global village” are already accustomed to watch each other and monitor ups and downs of democratic development even in small countries. Big steps were made towards transitional justice, which is supported by the fact that most of the examples of interventions and references to wars from other locations belong to the recent past, that is to the post-Cold War era.

It is up to us to decide whether we shall join those trends and face the events of the 1990s or pass the burden on to future generations in Serbia. If we opt for the latter, there is a question of how we will explain to them that we did not have the willpower to face the events we had experienced and that we had chosen to pass it on to them to cope with the past they have had no part in.

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Conferences

Current Issues

Angel Marin Bulgaria in NATO and the Security of Southeast Europe

Christopher Patten The Western Balkans: The Road to Europe

Günter Verheugen Enlargement of the European Union: Expectations, Achievements and Prospects