Outsiders, like me, must be cautious before saying anything to a troubled nation like Bosnia, a war-weary and – now - war-fearful place. Better to stick, cautiously, to facts of which I can speak. Nothing else.
My ICTY experience is already almost 16 years stale and involvement in Bosnian matters since then has been intermittent. Looking back, those details on which trial attorneys and judges must concentrate seem now either unimportant or invisible. The broad outlines of Bosnia’s tragedy fill the mind; and with them broad but conclusions of which I am certain beyond any reasonable doubt.
They may can choose to forget Bosnia
A first conclusion of which I am certain is that there will be no contentment in your land if its history is not accurately recorded.
A second conclusion of which I am similarly certain is that the Serbs – in Serbia and in Bosnia itself - were and are to blame. There was and is absolutely no reason or excuse for what was done to the Bosnian Muslims in the 1990s by the Bosnian Serbs and Serbia itself, something all know but that those with power to help Bosnia may choose to forget.
A third similar certainty – well a very high probability – is that the ICTY process, well-intentioned as it may have been, may not have worked that well for Bosnia.
To my surprise I have come to ask whether trying individuals – and the ICTY can only try individuals – from all sides of conflicts is really such a good idea. It seemed "fair" at the time – whatever "fair" may mean. But fair to whom and with what consequences?
After WWI the Kaiser was given sanctuary in the Netherlands and there were a few rather feeble war crimes trials of Germans in Leipzig. After WWII at Yalta Churchill wanted to have the Nazi leadership shot or imprisoned without trial. Roosevelt wanted public trials and Stalin agreed with Roosevelt on grounds that Russians liked public trials for propaganda purposes. The Head of counter-espionage at the UK’s security service MI5 (Liddell) explained some of the UK’s reasoning at the time the Nuremberg trials were being planned:
- Personally I think the whole procedure is quite dreadful. The (chief prosecutor) had recommended that a fact-finding committee should come to the conclusion that certain people should be "bumped off" (murdered) and that others should receive varying terms of imprisonment, that this should be put to the House of Commons and that the authority should be given to any military body finding these individuals in their area to arrest them and inflict whatever punishment had been decided on. This was a much clearer proposition and would not bring the law into disrepute...It seems to me that we are just being dragged down to the level of the travesties of justice that have been taking place in the USSR for the past 20 years.
The victor will always be the judge
He then visited the trial of the main defendants in Nuremberg and wrote
- One cannot escape the feeling that most of the things the 21 are accused of having done over a period of 14 years, the Russians have done over a period of 28 years. This adds considerably to the somewhat phoney (false/fraudulent/sham) atmosphere of the whole proceedings and leads me to the point which in a way worries me most, namely, that the court is one of the victors who have framed their own charter, their own procedure and their own rules of evidence in order to deal with the vanquished.
One of those on trial, Nazi Reichsmarschall Göring felt rather the same, saying, while waiting his fate:
- The victor will always be the judge, and the vanquished the accused.
Yet, in many ways, Nuremberg worked well. Let me explain, but first a couple of sentences about football, of which I know nothing.
In any football match, team members may do bad things, get yellow cards or red cards and be sent off. Even the captain can be sent off for what he, as an individual, did. But if their team wins then, in the end, that is all that matters. There is always a difference between teams as entities and their members. Had the ICTY tried teams – countries, quasi-states like the RS, even perhaps paramilitary groups like "Arkan’s Tigers" or "The Scorpions" and not just individuals its value might have been very different.
I never thought this way during the trials in the Hague although those working there for the UN regularly reckoned how a trial of a leader was to some extent trial of the entity that the leader led. But only to an extent.
Since the unsatisfactory 2007 decision in the Bosnia-Serbia Genocide Convention case at the International Court of Justice (ICJ) I have done one or two things, sometimes with Dr Nevenka Tromp who had worked with me on the Milošević case, aimed at helping Bosnia, although nothing really worked. That, and other things, set me thinking along these lines and to questioning whether victor’s justice might not necessarily have been a bad thing for Bosnia and other parts of the former Yugoslavia. Dayton happened 26 years ago.
The Nazis surrendered to the Allies in the spring of 1945. I went to university in the UK a mere 19 years later. At my university, where I studied philosophy and politics, WWII was never spoken of - in lectures or tutorials or among friends. It had been a war where we, with the USA, Russia and others, were among the "all-virtuous" victors. Of course it was not like that in reality.
There were unresolved possibly criminal acts such as the bombing of Hiroshima and Nagasaki in the Japanese war and the carpet-bombing of Dresden in Europe, none of which has ever been properly investigated as possible war crimes. And, it is reasonable to assume, there may have been criminal acts against enemy soldiers and civilians by individual Allied service personnel or units. But they seem never to have come to light. The black and white image of good and evil worked well in all ways for us.
With the war behind us, to the east was the Iron Curtain, shielding us from the evil of the different political and economic system functioning behind it, mostly under Soviet control. And to the west was the USA.
So it was that, from the end of the war we had been able to look both backwards and forwards with certainty in the rightness of our society. We northern Europeans – the UK for example – prospered and developed. Curiously, so too did Germany, also certain, not certain of being in the right but of being in the wrong.
Your dangerous state
Certainty of a nation’s virtue brings benefits, it seems. Uncertainty does not. Victor’s justice may have contributed to why those benefits came our way.
Meanwhile, the former Yugoslavia’s well-known "soft" communism failed to neutralise the general propaganda about the wickedness of communism or any form of serious socialism. Neither did the tourism allowed by President Tito into your dangerous state that I visited on a school exchange in 1963 and, later, as a tour guide for the summer of 1970 in Cavtat/Dubrovnik. My tourists guests then, so far as I recall, thought those "Commy" Yugoslavs were lucky to have our foreign financial patronage. They certainly never appreciated how the "Commy" youth – if they spoke to them at all - were probably better educated, more genuinely liberal than they and their "Brit" children were and they knew very little if anything of the complex construction of the Republic whose coast was a one-year-only change from Spain’s Costa Brava. And they cared less.
Holiday travel is part of popular culture and popular culture generally is a powerful indicator of many things, including the effects of wars and how a nation recovers from war.
Remember the Beatles and ever heard of the "swinging 60s"? The Beatles take-over of the world started only 15 years after the end of WWII and they were not looking back. Nor the Rolling Stones. Check out on the internet UK films of 1960/1/2/3/4/5/6/7/8/9 and what do you find? Comedies, Spy films about the iron curtain, silly James Bond films, Ben Hur, "westerns" but almost nothing serious about WW11. Lanzmann’s seminal film about the holocaust, Shoah, came out only in 1985 , well over one generation after the war was ended; Schindler’s list in 1993.
UK citizens’ culture, shallow or not, moved forward to some other place because it, and much of the rest of the world, was certain of the UK’s immediate virtuous past.
In Bosnia, and also in Kosovo, some, many, most films since the 1990s look back to the wars of the 1990s.
For Bosnia to Srebrenica in particular. Despite all the many good things Bosnia has going for it, forward movement is not one of them. And it is not Bosnia’s fault. And that’s really bad luck because those whose fault that is may do nothing now to help. Bosnia is trapped and, in truth, people outside Bosnia do not really care.
Everyone should be tried
I must return to the heresy that victor’s justice may not, after all, be such a bad thing. And indeed, despite what Göring said, and the UK head of MI5 thought, in 1946 it was not until about 1971 that the term "victor’s justice" was generally applied in a critical or pejorative way to one-side-only trials.
Before that happened and perhaps, not as surprising as we might now think, in 1962 when Lord Russell established an informal process to consider criminality in the Vietnam war , its left-leaning panel of anti-American philosophers and others looked only at criminality of the USA. No interest in crimes of the other side, the communist Vietcong. Much though the tribunal has been criticised – and little though may been its effect – it was the only public evidence-based assessment of criminality of the US although it declined to consider the Vietcong. It stuck to the Nuremberg model – unashamedly.
Do these considerations speak of the value of having a clear winner after conflicts and a certain loser? Just as in football?
The ICTY - well-intentioned - set out to "try" all sides. Not for it or for the ICTR (the International Criminal Tribunal for Rwanda established a year later) the failings of the "victor's justice" court at Nuremberg. Nor indeed for the International Criminal Court that came into being a few years later that also will consider trying all sides.
The UK/USA/Canada/Australia etc. model of justice - as a game where a prosecutor and defendant compete - may never have been the ideal way to review the wars of the Western Balkans. And may now be showing its shortcomings.
One shortcoming – unintended one hopes – of the determination of the ICTY to try all sides in the Yugoslav wars was that all sides were given pubic opportunity to advance their own side of the history, even if absurd, as defendants or as victims. And they were able to use the overall trial process to make the best they could of the ICTY’s public record by provision of evidence, by withholding of evidence, by use and abuse of the legal process. And perhaps by an ability to persuade Mrs del Ponte as to what documents should be in public, what not; even who should be prosecuted and who not. And from the start the Serbs knew well what they were doing, able as they always have been to rely on instinctive preference for Serbia over other parts of the Balkans by politicians in northern Europe, in the UK in particular.
Back to what I said at the start. Not only were the Serbs without excuse and wholly to blame collectively but even individually – team member by team member as individuals - they were the worst offenders.
Lord Owen said in evidence to Milošević during his trial that:
There was evil done on all sides by all parties
- I think it is too simplistic to see the war in Bosnia and Herzegovina being one of aggressors and victims. I've made it quite clear that I think there was evil done on all sides by all parties... there is a danger in trying to be fair in apportioning an equality of guilt, in trying to determine that all were equally at fault. That, in my judgement, was not the case. I said it yesterday and I say it again. In trying to make that very difficult judgement as to how many -- you know, what was the balance of fault, what was the balance of horror, what was the balance of inconsiderate behaviour, I think the Bosnian Serbs come out the worst. I they are followed by the (Bosnian Croats), and then by the Muslim leaders and troops. The Bosnian Serbs were the first, in my view, in the scale of bad behaviour. I think your fellow Serbs did not do the reputation of the Serbs worldwide any good by their conduct in Bosnia.
But this kind of "fair" analysis - "worst", "bad", "less bad" - obscures or overlooks a truth. Of course once at war each side will kill people of the other side and bad things may be done by both sides within warfare. Unless there is total victory, or the general perception of total moral victory, by one side - as in WWII - the originating cause, the real cause of all the death, misery, loss and destruction, gets forgotten
And if the originating cause was by the party also seen as the worst collectively and individually – Serbia, Republika Srpska in this case - why not demand from the international community the certainty for Bosnia’s future that victor’s justice might have brought and could now bring? May the potential value to Bosnia of this certainty be a fourth truth?