In one of the first studies to look at how the Yugoslav wars are understood in Serbian culture, Eric Gordy examines the legacy that confronted the country when Slobodan Milošević was forced out of power in 2000, assessing where transitional justice has achieved its goals, where it has not, and why it matters.
2013 | 272 pages | Cloth $65.00
Political Science | Law
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Table of Contents
Chapter 1. Guilt and Responsibility: Problems, History, and Law
Chapter 2. The Formation of Public Opinion: Serbia in 2001
Chapter 3. Moment I: The Leader Is Not Invincible
Chapter 4. Approaches to Guilt
Chapter 5. Moment II: The Djindjić Murder, from Outrage to Confusion
Chapter 6. Denial, Avoidance, Shifts of Context: From Denial to Responsibility in Eleven Steps
Chapter 7. Moment III: The "Scorpions" and the Refinement of Denial
Chapter 8. Nonmoments: Milošević, Karadžić, Šešelj, and Mladić
Chapter 9. Politics and Culture in Approaching the Past
This book traces the dialogue over the legacy of war crimes, crimes against humanity, and genocide in Serbia as it developed after the Milošević regime was formally removed from power in October 2000. Casting the topic in these terms is already certain to raise controversy, even before the presentation moves into details. Some readers may respond with shock, and ask how dialogue is possible over events that fall below an absolute moral bottom line. Some others may respond with indignity, asking how an accusation that is contested can serve as an initial premise. Some others may contend that the question is incorrectly postulated, and that examining a dialogue about perpetrators in a community that also contains victims is in some way tendentious or disrespectful. What responses of this type would indicate is something that the presentation will explore: twelve years after the process of accounting for the record of that regime has begun, there is very little that is settled or unchallenged in public memory in Serbia. Beginning with factual dispute over basic elements such as the character of the violence that took place and the number of victims, disagreement is very much alive and very passionately engaged over questions of responsibility, over the degree to which the state or public is involved in or obligated by the historical record and over the question of what kinds of responses are sufficient. The debate expands into questions that could be thought of as moral in character, including whether the public can be conceived of as identifying with victims or with perpetrators, and whether the effort to "confront the past" (as the widely used and varyingly understood phrase has it) addresses a genuine social or political need.
It is not surprising that these issues should be surrounded by controversy. It would be more surprising if they were not. Although a strong case can be made that fact finding, prosecution and punishment, official apologies and accounts, and the generation of open public dialogue are necessary as a means of moving Serbian society out of a past characterized by authoritarian rule, confrontation, and isolation, there are two facts that cannot be ignored. First, almost everything that has been done in the field of transitional justice has been undertaken in response to external pressure and conditionality. Second, there exists no real precedent for the expectation that a society recently emerged from violence of the type seen in the wars of Yugoslav succession would produce both institutional and cultural accounts, and do so both willingly and quickly.
Before the UN founded the International Criminal Tribunal for the Former Yugoslavia in 1993, it had founded no international tribunals. The most frequently cited precedent was the International Military Tribunal based in Nuremburg (most observers prefer to forget its counterpart based in Tokyo)—not a voluntary initiative at all but one imposed on Germany by occupying forces that had defeated it in a war. For all the magnification of the Nuremberg legacy, it has become a historical commonplace that public discussion of the kind that was hoped for in Serbia did not begin in Germany until two decades after the Tribunal: at a point when most people who could be directly tied to the Nazi regime were no longer participants in the competition for political power (and when the presence of one who was tied, chancellor Kurt Kiesinger, provided a focal point for debate and confrontation—does anybody remember anything about Kiesinger aside from the fact that Beate Klarsfeld smacked him in the face?). The transitional justice initiatives in Serbia could plausibly be regarded as the first international effort at postconflict justice. In the domestic context it could also be considered precedent-setting, as the second half of the twentieth century saw a number of post-regime change and post-civil war initiatives in the world, but no corresponding effort to address large-scale violence against civilians occurring in an international conflict. It might be fair to say that at the moment of regime change in Serbia in 2000, the project of accounting for the past carried high hopes, but that these hopes were only weakly supported by precedent and scantly accompanied by conceptual clarity with regard to what was involved.
The range of initiatives advocating a settling of accounts entered into a political environment where more than the recent past is unsettled. The controversy that developed reflected a background fact that has been observed in many other contexts: Serbian society is deeply divided, both in terms of social and political goals and in terms of understanding the ways in which the society has developed and the direction it is headed in the future. This severe social division has been used to explain a number of factors, from the question of how the Milošević regime was able to survive in power to why the crimes happened in the first place. Wide differences in understanding the present were recapitulated in interpretations of the past, both during the period of violence and after it. Much of the time material interests were at stake, as figures associated with the regime that had left power sought to protect their reputations and influence, and figures associated with the incoming governing groups sought to discredit them. The competition between the incoming and outgoing elites was made more complex by the fact that these two groups had considerable overlap and were often only barely distinguishable from one another.
There are two widely diffused conventional accounts of the record of transitional justice in Serbia, each of which is true but incomplete in its own way. The first of them concentrates on achievements and breakthroughs: the first trials of high military commanders and heads of state, the first regionwide system of special prosecutors, the first exchanges of declarations and apologies, the first legal judgments on genocide and on sexual violence as a war crime. The second of them concentrates on disappointments: a long record of obstruction, relativization, and denial; retrenchment of forces complicit in the operation of a criminal regime; repeated instances of impunity. It would be difficult to say that either account is wholly right or wrong; both the achievements and failures of the process are best understood in the social and political context of contemporary Serbia, which is the context that this study tries to take into account.
In the decade after 2000, Serbia provided a unique opportunity to observe a process of transitional justice in real time, with many expectations and institutions already in place. From a methodological view this has both advantages and disadvantages. The principal advantage is of course access to ongoing events, in their intensity and complexity and carrying their emotional weight. Much of the material used in here is derived from sources like the daily news, read at the same time as the rest of the reading public read it, and from events that I was able to attend, sometimes directly and sometimes vicariously. The principal disadvantage derives from a lack of distance from the events under discussion—not only temporal and analytic distance but also emotional distance. As a researcher I was not immune to the controversy and complexity of the environment I was examining, nor to the feelings of elation and disappointment that inevitably accompany a process that is laden with expectations related to categories that, however uncertain, have to be regarded as fundamental, like truth and justice. Added to this is the fact that a situation that is ongoing can change unexpectedly. Some events that took place while the research was ongoing compelled me to revise the entire manuscript and research plan. They changed again between the time the manuscript was submitted and production of the book began, and will have changed again by the time the book reaches the reader's hands.
While I cannot say that researching a controversy as it was ongoing made my work any easier, I can say that it helped me to generate a feeling for something that formal and conventional approaches to this sort of issue, whether they come from political science or law, might very often miss: a process developing in a real society populated by real people experiencing real conflicts, and governed by an elite that is limited, compromised, and self-seeking. It was not easily amenable to mechanistic formulations or graphic representation. Rather, it was dirty, complicated, contradictory. As much as this may have presented a personal disadvantage I think it provided an epistemological advantage. After all, we do not live in Hegel's ideal universe but in a real world not of our choosing. We are not mystified by the confusions and contradictions we encounter day to day; in the best case we try to understand them and function around them. Why would outside observers expect people in another country, or people approaching a political problem that is prominent in the media, to go through their lives differently? I have tried to understand the people whose written and spoken words make up most of the material in this study (whether I like their words or not—that is a matter of opinion and orientation) not as historical subjects or as abstractions, but as human beings.
The story told in this account is what those human beings encountered and what they made of it. We can say that given the record of civic engagement and information that preceded the change of regime in 2000, they encountered a process almost ready to begin. Observers of various kinds had been tracking and compiling information about criminal abuses from the moment the wars began in 1991. They were prepared for a project to engage the public and institutions with the knowledge that they had, and to demand an accounting. This project got off the ground with resistance, which in many instances proved to be strong. The encounter between the efforts to move knowledge and dialogue forward and the impulses is to hold it back are described in this book as three "moments": these were incidents where a dramatic event or the emergence of new information appeared to have the potential to move public understanding dramatically forward. In each of those "moments" the effect was considerably less than could have been anticipated at first. The principal reason that effects were limited was the engagement of various actors—media, political, and intellectual actors, but also forces in public opinion—to deny, recontextualize, or trivialize the dramatic events and information.
Resistance limited the potential of "moments," but did not defuse their force completely. In a sense the forces of resistance proved to be creative: unanticipated issues were raised, boundaries of discourse were shifted, and the discourse of rejection was compelled to undergo refinement rather than remaining crude. Consequently although there does exist a discourse of denial that has persisted since the Milošević period, it is not the same discourse of denial. There are not many people left who will, as they may have done in 2000, deny facts that have been demonstrated. Instead it is possible to observe a migration of discourse from denial of facts to dispute over their meaning, and contention over the authority of people who present them. Whether this constitutes meaningful movement or not is at least partly a matter of standards and interpretation. I propose in the concluding chapter that accounting for the past is a project partly failed and partly achieved, and that the incompleteness of the effort leaves visible traces in Serbian society.
And then there were, in addition to the "moments," some "nonmoments." These were incidents where the lines dividing the participants in the discussion became clear but did not move. Although the presentation discusses four "nonmoments," there were undoubtedly many more of these, some of them small in scope. What the "nonmoments" may show is the limits on how far public memory is capable of moving, at least for a time.
Taken together, the "moments" and "nonmoments" might be thought of as telling a more complex and possibly more troubling moral story than the one with which the period of research began. It is a story that may have implications for similar situations in the future. We are compelled to ask why the discussion got as far as it did, why it did not go further, and what this means for Serbian society in the present and similar transitional justice initiatives in the future. To the degree that the particular set of social and historical circumstances discussed here is unique, it is unique for the reason that we have been offered the ability to trace the progress of a transitional justice initiative, not only procedurally and formally but also discursively and substantively. We can talk not only about what happened, but also about what people who participated in the moment said that it meant to them.
The lesson from this experience may be the same one that I try to teach whenever I am asked about events in the region: if you want to understand the politics, look at the culture. The principle applies particularly well in an instance where a number of political actors imagined that it would be possible to achieve social and cultural goals using instruments of law. While it is not wholly implausible that a legal cause could lead to a social or cultural effect, a deeper understanding of the environment is required. Toward the beginning of the study some public opinion research from 2001 is examined: it suggests that people who were asked did not feel that they knew all they wanted to know, and that they did not trust all of the sources that were regularly available to them. Additional material from literary and media ethnography seemed to suggest that the whole process of learning about the past was burdened with fear and distrust, and slowed by the silence (or negative engagement) of institutions that people did tend to trust. What all this suggests is that processes could have gone farther, not just with greater engagement on the part of institutions but also with a more sustained effort on the part of tribunals, courts, investigators, and activists to communicate with the public. One factor that probably limited the entire process was the fact that both the advocates and opponents of transitional justice carried out their activity in a way that was confined to small groups. This could be a reason that there was a small number of "moments" to consider: it was only big news that allowed the discussion to break out of closed circles. This is a lesson that may have been partly learned, as post-ICTY transitional justice efforts have sought to separate the production of historical accounts from the production of verdicts, and to cultivate the involvement of educational, religious, and cultural institutions. The magisterial distance of law from the Serbian public did not encourage popular engagement.
Finally, a brief note about the structure of the book. The narrative shifts as it progresses from a narrower scope to a broader one, and from what might be considered technical and legal questions to some wider philosophical and moral issues. I think that this is faithful to the direction of the story as it developed over time. The chapters are arranged to alternate between detailed empirical elaboration of the "moments" that are examined and thematic exploration of questions and themes that are provoked by the "moments." Two of these thematic chapters are mostly informative in character, reporting in one instance on early post-2000 public opinion research in Serbia and offering an overview of the major international and domestic transitional justice initiatives. The third is a bit more ambitious (and longer!), tracing varieties and refinements of discourses of denial and responsibility. While the empirical and thematic chapters could be read separately, the ordering of the chapters is meant to lead readers through the logic that brought the study from apparently clear and relatively simple moral questions to greater complexity and uncertainty, and to an insistence on the importance of the cultural and social context.