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propaganda’
Among the express stated purposes of the founding of the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed on the Territory of the Former Yugoslavia Since 1991
(more informally, the International Criminal Tribunal for the Former Yugoslavia, or
ICTY), aside from removing “a threat to international peace and security”, ending
“widespread violations of international humanitarian law” and acting to “take
effective measures to bring to justice the persons who are responsible for them”,
the Security Council added a normative social goal: to “contribute to the
restoration and maintenance of peace”.i The last of the phrases might be
understood as international-law boilerplate, or as a tool for the Security Council to
claim jurisdiction over a matter that might be considered the domain of the
General Assembly. But it is also possible to interpret the statement as expressing a
sincere belief that prosecution and trials serve a human purpose. In this way of
arguing for the conduct of criminal trials, they are conceived as contributing to
transcending fratricide by producing clear evidentiary accounts of events, of
confronting accused perpetrators with victims and witnesses and allowing all of
them an opportunity to speak, and by producing judicial findings that constitute a
reliable and comprehensive account of the traumatic events of the recent past.
Somewhere in between the role of the judicial instance as the finder of fact and
the court as the distributor of justice lies the conception of truth as a contributor
to reconciliation and a foundation for a peaceful future. This is at least the ideal
version of the hopes that were invested by some people in ICTY at its founding.
The real experience of ICTY at work and of its reception in the region has,
possibly unsurprisingly, not met these expectations. There are varied reasons for
this disappointing outcome, ranging from shortcomings in the communication
between ICTY and the publics in the region, the constraints leading to a selective
approach toward the choice of which cases to prosecute, lack of receptivity of
political elites to the demands of cooperation with the Tribunal, and residual
celebration of wartime “heroes” in the media. In some instances it appears as
though trials before ICTY have led to revival of conflict rather than reconciliation.
Here I would like to concentrate on one aspect of ICTY procedure that has
encouraged this sort of outcome: the practice of allowing several prominent
indictees to decline legal counsel and lead their own defence. As a result of the
decision by ICTY to permit this practice, the “right to self-representation”,
previously an American peculiarity, has now been affirmed in international fora
with effects that are mostly predictable.
Here the legal failures of the defendants might possibly be counted as political
successes. If so the success derives from the distance of the Tribunal from its
presumptive clientele. This has the result that Milošević and Šešelj have been able
to manipulate procedures in ways they would not be permitted to do in a Serbian
court, and the window to their success is offered by the fact that they understand
some things about domestic politics and culture that the prosecutors and judges do
not. The consequences of this are amplified by domestic media in Serbia, which
have largely tended to present the defendants sympathetically.
This would be a matter of interest though perhaps not of concern if it were not
the case that something is at stake. In principle, why are trials for violations of
international humanitarian law conducted at all? The simplest answer from the
point of view of law would be that it is a process of establishing responsibility and
identifying and punishing the guilty parties. Anybody with concrete experience of
criminal trials of any kind will already be aware that even this simple proposition is
heavily problematic. I will not enter into that set of problems because they already
constitute, through news, film and political debate, a part of everyday lived
culture.
The problem becomes yet more complex when we look at criminal trials of
this type from the perspective of society and culture. Here trials are expected to
take on ritual functions, historical functions and roles as catalysts of debate that
are far from certain. Let me offer some examples from a couple of prominent
social-legal theorists. Mark Osiel foregrounds the trial as a site of contestation,
where an exchange takes place but a determination is made:
Ruti Teitel moves forward from the moment of trial to the diffusion of outcomes
and their eventual repercussions in popular consciousness:
In the principled version of events coming from this school of social-legal theory,
there are some strong expectations attached to the trials. They are supposed to
constitute the realisation of a value called “truth”, and they are supposed to
establish the existence of something called “the past” from which it is necessary to
“break”. These terms are appearing in quotations not because I want to dispute
their applicability but because every time they are used they create a need for
definition. We need to be conscious that looking at trials from this perspective
involves making a set of assumptions about what their importance and effects will
be that are, if not world-historical in scale, at least on a level that anticipates
profound social and moral consequences for the anticipated audience.
Looking at actual trials before the ICTY might lead to a mixed conclusion, that
it has met both some of the most ideal and some of the most cynical expectations.
It has set major precedents in many rulings, beginning with the Čelebići prison
camp case,vi which led to a new body of jurisprudence on command responsibility,
that enhanced the ability to apply international law to civil wars and to incidents
involving paramilitary formations. It has also produced jurisprudence that has made
a major contribution to including gender-based crimes, including rape and sexual
violence, as violations of the Hague and Geneva Conventions and as elements of
the crimes of genocide and torture.vii And together with ICTR it has produced the
first international jurisprudence on genocide since the passage of the Genocide
Convention in 1948. And it established a precedent by bringing to trial at least one
head of state (though it left doubt with regard to others) as well as a few figures
who either not real heads of state or not heads of real states.This represents a
major defeat for the doctrine of sovereign immunity, according to which political
leaders could not be held accountable for their actions under international law. viii
At the same time ICTY has also attracted criticism for some perceived
shortcomings and generated some resentment in the region, both because of its
distance from and failure to communicate with its presemptive „clientele“ and
because of difficulties in the conduct of particular trials and the treatment of
evidence. Consequently both knowledge about ICTY and measures of trust in it
have been consistently low throughout the region.
A more fundamental problem has involved failed prosecutions that have
contributed to the assault on the Tribunal's credibility, including the trials of
Ramush Haradinaj (failed in part due to intimidation of witnesses, leading to a
later effort at retrialix) and of Naser Orić and Tihomir Blaškić. The problem is
compounded by delay. Milošević waited nearly a year for his trial to commence
after his arrest in 2001, and it was still incomplete at the time of his death in 2006;
Šešelj was taken into Tribunal custody in February 2003 and his trial began in
November 2007. Some indictees did not live long enough to see proceedings against
them begin.
On balance it might be fair to say that the Tribunal has produced a record
of some major legal importance, but at the same time has left some portions of the
record that facilitate the anti-Tribunal argument that legal standards are not
uniformly upheld and that political considerations play an unwelcome role. For
people in the region such anti-Tribunal arguments have a particular resonance as
surveys show that levels of knowledge and understanding of the Tribunal's work are
low. Domestic media deepen this resonance as much of the coverage of trials of
prominent indictees resembles, in the words of OTP spokesperson Olga Kavran,
„fan journalism“.x
As we know the Milošević trial ended with the death of the defendant in 2006,
before all evidence had been presented and without a verdict having been
reached. One of the consequences in domestic politics was that Milošević partially
rehabilitated his reputation. He viewed the trial as an opportunity to demonstrate
the claim he had made as a politician, “they are not attacking Serbia because of
Milošević, they are attacking Milošević because of Serbia”. xiv To the degree that he
succeeded something like a consensus began to develop in Serbian in public opinion
that while he may have been catastrophic and perhaps even criminal as a political
leader, he had defended national interests rather than himself before ICTY. As
little as he may have done to advance his own legal defence, he made a large
contribution toward influencing the political environment to make denial of crime
appear to be consistent with national interests and national culture.
The lessons of Milošević’s defence were learned well by Vojislav Šešelj, whose
trial is under way following a series of false starts after his voluntary surrender to
ICTY in 2003 (conveniently ahead of the murder of prime minister Zoran Đinđić, in
which he was charged as a conspirator). The indictment against Šešelj is also a
shaky one, as it requires demonstrating that he actually exercised command
responsibility over paramilitary organisations associated with his political party.
The strict standards of command responsibility adopted in other cases before ICTY
suggest that it is a case in which a competent defence could obtain an acquittal.
While Šeselj may yet be acquitted, he has ample motivation not to hurry to do this.
He would very likely face a different set of criminal charges if he were to return to
Serbia, where he would be compelled to operate without the support from media
and security services that once made his political power possible. xv In the
meantime too his political party has split, with the much larger part opting to
follow the faction that rejects his legacy and policies. In addition to this he
appears to relish the publicity that the trial gives him, and in his own words “would
never miss such a show”.xvi
While spending his time in the ICTY holding facility Šešelj has written and
published extensively. He is an extraordinarily prolific writer, possibly among the
most prolific in the history of the Serbian language. The National Library of Serbia
lists over 200 titles under his name. Most of his works are polemical in character,
explicitly directed toward real and imagined political opponents. In one period
many of them were widely read because he published compromising material about
his opponents that his party had received from the State Secrity services.9 Since
arriving at the Hague in 2003 his titles have suggested a strong focus on
descriptions of his own situation. Here is a sampling of some recent titles by
Šešelj:
2004: У чељустима курве Дел Понте [In the Jaws of the Whore Del Ponte]
(Carla Del Ponte, OTP)
2005: Лажљива хашка педерчина Џефри Најс [The Lying Hague Pederast
Geoffrey Nice] (Geoffrey Nice, OTP)
2006: Холандски курвин син Алфонс Ори [The Dutch Son of a Bitch
Alphonse Orie] (Judge Alphonse Orie, ICTY)
2008: Очерупана хашка ћурка Кристина Дал [The Plucked Hague Turkey
Christine Dahl] (Christine Dahl, OTP)
Although I have not read Šešelj's books (and doubt very much that anybody has)
it might be possible to discern some patterns in his recent literary production from
the titles alone. In the first place, most of them seem to be deliberately
provocative personal insults directed toward various Tribunal personnel, a practice
that Šešelj had adopted already in an earlier period when most of the people he
perceived as his opponents were domestic political actors. In the second place,
they seem unlikely to generate sympathy for his cause or an interest in reading
among people who are not already his followers and likely to welcome an angry
stance of pure rejection. But third, and perhaps most important, is the tone, which
is not only vulgar and irreverent but uses folk expressions and insults that are likely
to be recognisable to the domestic public. Here he is placing himself self-
consciously into a local tradition, apparent in politics, literature and folk humour,
where a proud but beleaguered weaker party responds to strong pressure with
calculated disrespect. In calling upon this tradition Šešelj offers a pronounced
implicit invitation to the audience to understand him as a representative of the
mythology of resistance.
The trial of another prominent indictee is still in its beginning stages at the
time of writing, but here self-representation appears to be developing in a
direction similar to the way it was practiced in the Milošević and Šešelj cases. At
the end of his cross-examination of prosecution witness John Wilson on 23 June
2010, Radovan Karadžić predicted that Serbia would defeat Australia 3-0 in their
World Cup match that evening and then characterised the situation in the
courtroom as „5-0 for Serbs“.xvii Leaving aside the accuracy of predictions about
football matches – these are easy enough to get wrong and in any case hardly well
suited to Tribunal chambers – the central element here seems to be that Karadžić
equated his own defence with „Serbs“. This is the fundamental strategy at work, to
promote perceptions of identification to the audience rather than to argue
evidence and law to the panel.
Bibliography
Armatta, Judith. Twilight of impunity: The war crimes trial of Slobodan Milošević
(Duke University Press, 2010=.
Bass, Gary J. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals
(Princeton UP, 2000).
Hesse, Carla and Robert Post (eds.). Human rights in political transitions:
Gettysburg to Bosnia (NY: Zone Books, 1999).
Kelly, Michael. Nowhere to Hide: Defeat of the Sovereign Immunity Defense for
Crimes of Genocide and the Trials of Slobodan Milošević and Saddam Hussein (New
York: Peter Lang, 2005).
Wald, Patricia M. ‘Note from the Field: Dealing with Witnesses in War Crime Trials:
Lessons from the Yugoslav Tribunal,’ Yale Human Rights and Development Law
Journal, vol. 5 (2002).
ERIC GORDY is Senior Lecturer in the Politics of Southeast Europe at the
School of Slavonic and East European Studies, University College London. His
research concerns political culture, transitional justice, and the everyday
experience of political transformation processes.
i
UN Security Council Resolution 808, S/RES/808, adopted 22 February 1993.
ii
Eugene Cerruti, ‘Self-representation in the international arena: Removing a false right of spectacle’. Georgetown
Journal of International Law 40:919-984 (2009).
iii
In Carla Hesse and Robert Post (eds.), Human rights in political transitions: Gettysburg to Bosnia (NY: Zone Books,
1999), pp. 218, 219.
iv
Ruti Teitel, Transitional justice (Oxford: Oxford University Press, 2000), pp. 83, 84.
v
G.J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton UP, 2000), p. 215.
vi
Full details of the Čelebići and other cases mentioned below may be found at the Tribunal's web site:
http://www.un.org/icty .
vii
Julie Mertus, "When adding women matters: Women's participation in the ICTY", Seton Hall Law Review, 38 (2008)
viii
See G. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University
Press, 2001) and M. Kelly, Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide and
the Trials of Slobodan Milošević and Saddam Hussein (New York: Peter Lang, 2005).
ix
P. M. Wald, ‘Note from the Field: Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal,’
Yale Human Rights and Development Law Journal, vol. 5 (2002). In December 2008 Haradinaj became the first ICTY
indictee to be profiled in the entertainment magazine Vanity Fair.
x
Saša Kosanović. “Dokazi protiv Gotovine su veoma uverljivi”, Novosti: Samostalni srpski tjednik, no. 549 (24 June
2010), http://www.novossti.com/2010/06/dokazi-protiv-gotovine-veoma-su-uverljivi/.
xi
G Nice, in conversation with the author. See also Florence Hartmann, Mir i kazna: Tajni ratovi međunarodne
politike i pravde (Beograd: Chronogram, 2007).
xii
During the 2008 presidential campaign in Serbia more details of the story emerged. The Belgrade daily Blic reported
that ICTY prosecutors had engaged Delić as a paid informant, and that the ICTY prosecutor had intervened to help him
in other matters. M. Ivanović and Ž. Jevtić, „Kandidata SRS za ministra odbrane plaćao Tribunal“, Blic, 8 May 2008.
xiii
Sense news agency, “Execution of six young men filmed in Srebrenica”, 1 June 2005, http://www.sense-
agency.com/en/stream.php?sta=3&pid=6649&kat=3.
xiv
B92 vesti, “Milošević napada lidere DOS”, 2 October 2000, http://www.b92.net/info/vesti/index.php?
yyyy=2000&mm=10&dd=02&nav_category=1&nav_id=12857 (radio address following election defeat).
xv
The journalist Miloš Vasić traced the source of leaked information that Šešelj frequently produced with great
fanfare in the media and which comprise most of the content of his published books directly to connections in the
security services. Miloš Vasić, Atentat na Zorana (Beograd: Narodna knjiga, 2005).
xvi
Quoted in IWPR, “Šešelj revels in court theatrics”, 16 March 2010, http://www.iwpr.net/fr/node/5753. The
comment was made to French journalists in June 1994.
xvii
Sense News Agency, “What the witness ‘had to know’”, 23 June 2010, http://www.sense-
agency.com/en/stream.php?sta=3&pid=15990&kat=3.