Bosniaks’ Perceptions of the Milošević Trial
SAFIA SWIMELAR
Elon University*
This chapter examines the legacy of the Milošević trial from the perspective of the Bosniaks—an important concern given that Bosniaks, who suffered the greatest losses during the war, have had the greatest hopes for what the trial could accomplish. Analysis of Bosniak media and interviews with a cross-section of Bosniaks shows that, although attitudes differed somewhat on the extent to which the trial had any real effect, Bosniaks generally shared dissatisfaction and anger with the trial process, Milošević’s escape from justice (that is, from what they expected to be a guilty verdict), and the fact that contemporary political and social realities (such as the continuation of genocide denial) do not appear to have been ameliorated by the Tribunal more broadly or the Milošević trial in particular. These conclusions support concerns within the transitional justice literature about the limited utility of criminal trials for wider socio-political reconciliation. Still, although Bosniaks appear skeptical about the effects of the Milošević trial, on balance they believe that even a partial trial, and the copious evidence it produced, will likely have a long-term positive effect on the creation of a common truth in the region concerning Milošević’s and Serbia’s roles in the crimes of the past.
I. Shattering High Expectations: The Continuing Pattern of Bosniak Disenchantment
Slobodan Milošević’s trial, death, and legacy are of concern to people all over the former Yugoslavia, but nowhere more than in Bosnia, where the consequences of Yugoslavia’s collapse were most catastrophic. Yet few studies have examined specifically how Bosniaks of different backgrounds perceive this monumental trial1—or, for that matter, its effects on Bosnia itself—the most fragile of all the Yugoslav successor states. What was the general perspective of Bosniaks and Bosnian media on the trial, Milošević’s death, and subsequent lack of a verdict? Relatedly, what have been the effects of these attitudes and of the terminated trial on Bosnian politics, inter-ethnic relations, and reconciliation more generally? Was this trial significant for Bosniaks and for Bosnia?
These questions are significant for several reasons. The expectations for what the Milošević trial could achieve were quite high—as other chapters note, many observers and the ICTY itself had characterized the Milošević trial as an important contribution to justice and reconciliation in the region; it was to be “the trial of the century,” and a landmark in the development of ICL.* These effects were particularly anticipated for Bosnia, which, 18 years after the war, is still characterized by fragility, division, and competing narratives, making discussions of justice and reconciliation particularly relevant.2
This chapter analyzes evidence of the Milošević trial’s effects on Bosniak attitudes in relation to: reconciliation, understood as effects increasing or reducing inter-ethnic accommodation;† victims’ recovery; and Bosnian politics and the state of nationalism, including responses to the International Court of Justice’s Bosnian Genocide case.‡ Identifying a single Bosniak perspective on the Milošević trial is a quixotic effort; it is hardly tenable to suppose that the Mothers of Srebrenica, Bosniak professors, and Bosniak politicians share uniform social and political views.§ There are also obvious methodological challenges in any attempt to isolate and measure the causal effects of the Tribunal, let alone a single trial—identifying the causal relationship between the ICTY’s work and attitudes or behavior “is a task fraught with complexity.”3 Nevertheless, it is possible to speak of general trends and attitudes without necessarily making causal claims.
Although there is variation and nuance, the overwhelming response of Bosniaks and the Bosniak-oriented media to Milošević’s trial and death has been anger, disappointment, and regret, with special criticism directed at the international community.* Moreover, the trial reinforced existing narratives about the war and responsibility for atrocities: Bosniaks have interpreted the trial as just another event in a long pattern of being on the losing end—harmed by their neighbors and the international community—going back at least to 1992.4
We must be careful not to overstate the relationship of this sensibility to this one trial. Indeed, for most Bosniaks, the legacy of Milošević’s trial simply has not had a major impact on their daily lives—those who have suffered most directly, such as families of victims of the Srebrenica genocide, are the exception for whom the trial had immediate meaning. Still, although there is no evidence that the Milošević trial, considered in isolation, had any independent, direct effect in Bosnia, the trial has contributed to a number of limited effects within Bosnia and for Bosniaks.†
Some of these effects—social, political, and legal in nature—represent competing claims and perspectives among Bosniaks, mirroring, to some extent, tensions within the literature on transitional justice about the effectiveness and importance of criminal trials for victim recovery and inter-ethnic reconciliation.5 The effects of the Milošević trial—though limited and indirect—are mostly perceived by Bosniaks as negative. Nevertheless, Bosniaks do insist that the trial made a positive contribution to the historical and legal record, in ways that will have an effect on long-term reconciliation.
II. The Context for Interpretation: Bosniak Perspectives on Transitional Justice and the Tribunal
It is important to recall the context against which contemporary Bosniak perspectives have developed and through which Bosniaks interpreted the indictment, trial, and death of Milošević. The central narrative among Bosniaks in relation to the wars in the former Yugoslavia generally parallels the most common view in the international community: Bosniaks see themselves as victims of Serb aggression, orchestrated by Milošević and characterized by the siege of Sarajevo, ethnic cleansing, concentration and rape camps, and genocide at Srebrenica and elsewhere.6 Although many Bosniaks admit that the Armija Republike Bosne i Hercegovine (Army of the Republic of Bosnia and Herzegovina or ARBiH) committed crimes as well, they maintain they were disproportionately the victims of killing and mass rape—a view confirmed by ICTY records and independent analysis.‡
The postwar dispensation has done little to ameliorate this sense of victimization or promote inter-ethnic accommodation. Since Dayton, Bosnian politics have been characterized by ethno-territorial division, nationalist rhetoric, and contested narratives over past crimes and the future of the state.7 Although Bosniaks acknowledge that Dayton was successful in stopping the conflict, in general they have negative views of its political consequences, and many argue that the United States was more interested in ending the war than in promoting justice.* Most difficult to accept, particularly for Bosniak political elites, is the continued existence of the RS, perceived as a product of and reward for genocide. There is an almost constant negotiation and struggle between greater centralization and unity, favored by most Bosniaks, and more decentralized, entity-level control, favored by most Serbs, a debate that also implicates integration with the EU.
This critical view toward Bosnia’s contemporary political situation and the role the international community has played in the postwar period is reflected in Bosniaks’ mixed attitudes toward transitional justice and the Tribunal. Of all the communities in Bosnia, Bosniaks have had the highest expectations for what the Tribunal could achieve, have given the strongest support to the institution, and were most likely to believe that the Tribunal could achieve the numerous goals of transitional justice and beyond. For precisely these reasons, however, the Tribunal that undertook the Milošević trial did not stand much of a chance of living up to the standards that many Bosniaks had set.
Ethno-national identity has generally been a good indicator of attitudes toward the ICTY in Bosnia; survey research generally finds that Bosniaks have been the most supportive of the Tribunal and are more likely than other groups to see the Tribunal as playing a role in peace building.8 This is understandable, because Bosniaks see the institution as punishing those responsible for their abuse and suffering. A February 2002 public opinion survey found the ICTY trusted by a slight majority of respondents in the Bosniak-Croat Federation, but by very few people in the RS.9 Other surveys of different segments of society, such as members of NGOs10 and the armed forces,† find much stronger support of the ICTY by all ethnic groups, but especially among Bosniaks. Other public opinion surveys found that comparatively, Bosniaks were much more likely to agree that the ICTY is a precondition for a just peace and normal relations,11 and to see the ICTY as more “fair” than did other groups.12 Finally, Bosniaks were the least likely to see the ICTY as political or as an obstruction to peace.13 Unsurprisingly, almost all Bosniaks viewed Milošević as “very negative.”14
This generally more positive orientation toward the ICTY has not been without its countercurrents. Given that Bosniaks had such strong hopes for what the court could achieve, they have also been one of its biggest critics when reality did not match with expectations. All Bosniak interlocutors consulted for this chapter reinforced survey research in terms of having had very high hopes for the outcome of criminal trials. Munira Subašić, leader of the Mothers of Enclaves of Srebrenica and Žepa, for example, said that all of the group’s members saw Milošević as the main culprit of the genocide and that, as the trial was going on, they all “spoke with the language of hope and conviction” that the trial would bring some kind of justice.15 Yet many Bosniak respondents question if the ICTY’s trials have contributed to any tangible changes in postwar politics or their own recovery, stating that the trials have ignored the politics and daily social relations on the ground where nationalism and denial of past wrongdoings is still strong.16
In part, these views may derive from low levels of knowledge and understanding of the Tribunal, due to media bias and the lateness of the Outreach program that the ICTY finally created in 1999.17 Media is the main source of information about the Tribunal for most Bosnians, and that coverage tends to focus on negative or dramatic events, and less on legal or technical information.18 However, these attitudes may also reflect Bosniaks’ substantive evaluations about the limited effect the Tribunal has had on regional politics: As Bieber’s and Trix’s chapters suggest, political agendas similar to those during the war are still alive in the region or at least viewed as legitimate; given Bosniaks’ views, one should be careful about assuming that revealing the truth will lead to reconciliation.
Bosniaks’ varied views mirror debates on transitional justice more generally. Although there is now little question of the need for some type of transitional justice in post-conflict societies,19 there is disagreement about the best type of mechanism—criminal trials, truth commissions, amnesty, or more informal processes—and whether criminal trials actually produce or lead to the positive benefits their supporters claim.* The claim within the transitional justice literature that trials are weakly correlated with reconciliation fits within the realist tradition at the intersection of international relations and international legal scholarship, which is skeptical of the independent power of international law to affect domestic society and politics and to tame rational self-interested actors.20 Realism considers international law a product of power and politics—a similar criticism to that leveled against the ICTY by many Bosniaks.
At the same time, some of the effects and legacies of the Tribunal and the trial can be understood from a constructivist framework, which views international law and institutions as diffusers of norms such as the rule of law, transitional justice, and human rights.21 Scholars within this vein believe that the ICTY has contributed to democratization processes in the Balkans and to the development and strengthening of new norms. Consistent with this perspective, some Bosniak respondents also expressed more long-term views that, despite the lack of a verdict, the trial was beneficial in sending a message against impunity and in support of the rule of law.
As we have seen, Bosniaks have generally viewed the Tribunal’s overall pattern of prosecution as generally consistent with their own view of the conflict; as a consequence, the most significant criticisms Bosniaks have leveled against the Tribunal have been specific, concerning long and complicated trials, inadequate sentences, and plea bargains. The nature of the latter two concerns—suggesting as they do that almost no sentence is strong enough to satisfy victims’ suffering22—may indicate that many Bosniaks experience victim’s syndrome, a sense of collective victimhood.23 This also implies a belief in the collective guilt of the perpetrators, a point to which we shall return.24 More broadly, the many years it took to apprehend two central indictees related to the Srebrenica genocide—Karadžić and Mladić—and, perhaps even more significantly, the loss of Bosnia’s genocide case against Serbia at the ICJ have reinforced the negative impressions that, as we will now see, formed around the Milošević trial.
III. Reactions to the Trial: The Wrong Victims
For Munira Subašić, who lost 22 members of her family at Srebrenica, the announcement that Milošević would be transferred to stand trial at the ICTY was “the best news, the best justice.”25 This sentiment was similar for many Bosnians who saw Milošević as the main culprit of the war and the crimes in Bosnia.26 Nevertheless, the strong Bosniak support for the Tribunal and the momentousness of a head of state appearing in an international court to answer for his crimes was not, over time, sufficient to insulate the trial from critiques about how that process played out.
The arrest and transfer of Milošević and the eventual start of his trial were watched closely in Bosnia and covered extensively by the media in the beginning, but—much as other chapters have shown for Serbs and Kosovars—Bosnians from all backgrounds lost interest in a long trial that was seen as too technical and boring.27 Negative reactions became more pronounced: The trial gave Milošević a public platform and an audience, something that Bosniak victims in particular saw as antithetical to justice.28
One Sarajevan journalist describes Milosevic as acting like a prosecutor against a “big international conspiracy” to the detriment of the integrity of the trial process:
With that kind of strategy, he was gaining time and also obvious strategic advantage over the Tribunal and he further succeeded in fueling the sentiments against the tribunal. Prosecutor and judges did not succeed in restraining or controlling him and preventing him from misusing the process and stealing time. In that sense, if this led to the tribunal’s fiasco, then the blame for it only belongs to the tribunal.29
Milošević’s courtroom tactics were directed at his principal audience—the Serbs—who were made out to be victims, but those same tactics naturally were viewed differently by Bosniaks, who understood themselves to be the principal victims of Milošević and the Serbs. If one of the goals of the trial was to give voice to victims, in its actual implementation it was perceived as giving greater voice to the perpetrators. Bosniaks argued that the Tribunal should not have allowed Milošević to make a mockery of the trial, the judges, and particularly the witnesses, thus creating a “circus”—a term frequently invoked to describe the trial.30
For many Bosniaks, the way in which Milošević conducted the trial led to the revictimization of many of the witnesses. Referring to the many members of her group who were (unprotected) witnesses in Milošević and other trials, Subašić said that they were forced to relive horrible experiences and listen to repeated denials that any atrocities were committed by Serbs—this felt like the Tribunal was “just killing us,” she said.31 This effect was particular pronounced in the cross-examination of witnesses “who were illiterate, impoverished, or otherwise vulnerable[;] he was dismissive and abusive.”32 Bosniak war veteran Enver Redžanović who closely followed the trial agreed: “I remember during the interrogation of witnesses, semi-literate women did not know how to respond to his interrogation; his method was of diminishing [others]—they were not his equals.”33
Additionally, Bosniaks’ perceptions about the trial process reinforced their continued and general distrust of the international community. Many Bosniaks believe that despite their public claims to be supporting a unified Bosnia (and Bosniaks as victims), the major powers in fact made political decisions that supported their wider interests, which included integrating Serbia as an accepted, “normal” European country. One political scientist commented that “By the same ironical twist of fate, it [the trial] brought many Bosnians to the same conclusion that Milošević had about the Hague court—that it is politically instrumentalized, especially in terms of hiding the guilt of the international community in all of that.”34 Another respondent reinforced this view by comparing Milošević with the later ICJ Bosnian Genocide case, in which Serbia was exonerated for responsibility for genocide, seeing both cases as protecting Serbia.35*
Beyond general complaints about Milošević dominating the proceedings, however, respondents did not present much concrete evidence for their claims that the court was politicized. Instead, these attitudes appeared impressionistic and grounded in positional identities—and therefore mirrored the views of many Serbs who have claimed to see political bias at the Tribunal. As we will see, this makes it difficult for the ICTY in general or the Milošević trial in particular to contribute to a common narrative or truth about the past that might aid in reconciliation.
In short, as time went on, Bosniaks became more disillusioned with the Milošević trial, just as they did with the Tribunal more generally. Clearly, Bosniaks’ present attitudes about the trial are in part a function of the trial’s termination, which served to deepen negative sentiments that were already forming. If the trial had ended in a guilty verdict, then the criticisms of the trial itself would likely have been muted; however with Milošević’s death, to which we now turn, the entire enterprise has come to appear tainted for Bosniaks.
IV. Milošević’s Death and Termination of Trial: No Relief
The Mothers of Srebrenica hold their ritual protests on the 11th of each month, but in March 2006, they linked their protest to another event: “Now Serbia has its 11th, maybe it is God’s will that Milošević died on the 11th, but what joy it would have been for us to see him receiving his sentence for the evils he and his politics have done to Bosnia and particularly to Srebrenica.”36 Some Bosniak media—especially the more conservative papers such as Dnevni Avaz—also exhibited happiness that the “monster is dead.”37 One journalist talked of the sentiment some had of “unexplainable joy,” especially among some of the Srebrenica widows.38 But the predominant response of Bosniaks and Bosniak media to Milošević’s death and the trial’s termination was anger, disappointment, and regret.39 The feeling of injustice was echoed throughout the pages of papers and magazines, on television, in public cafes and streets,40 and by all respondents interviewed for this chapter. Journalist Samir Sestan called Milošević’s death “a grotesque and disgusting joke,” adding that:
It happened so that the death of a criminal did not evoke any relief in the victim—not triumph and not euphoria, but completely unexpected and absurd pain. Now we can comfort ourselves with different stories and explanations that we are not mourning because of his death but because we did not get to the moment of the verdict and that we are upset that the crime will not be clearly and undoubtedly valorized … it has brought us only pain and not relief.41
The leader of the Bosanskohercegovačka patriotska stranka (Bosnian Patriotic Party), Sefer Halilović, declared that he had expected the death of Milošević, and that it represented a huge blow to the Tribunal, but more specifically to the Prosecution.42 The Council of Bosniak Intellectuals (Vijeće Kongresa Bošnjačkih Intelektualaca) concluded that Milošević was unfortunately able to evade a deserved punishment and regretted that he did not live to see the results of the projects he had created, such as an independent Kosovo.43
For most, the death was an occasion to repeat existing criticisms of the Tribunal that were believed to have contributed to the failure of the trial, particularly its length and the inefficient strategy of the Prosecution. For example, the Council of Bosniak Intellectuals specifically lamented the length and high cost of the trial—which it put at 200 million dollars—and questioned whether the Tribunal would change its procedures when it came to the (then only anticipated) Karadžić and Mladić trials.44
All interlocutors were disappointed that Milošević died before the trial was finished, but some added a point of skepticism about his death that connected to a theme of distrust and criticism of the international community. Subašić, for example, said she was dubious that Milošević had actually died, and believed it was a hoax orchestrated by the international community to confuse the victims; perhaps he is living nicely in Russia, she suggested.45 A prominent Sarajevo journalist reported having heard doubts regarding Milošević’s death from ordinary Bosniaks, including those with considerable education, and that these views were connected to claims that the international community had sought to protect Serbia and Milošević.46 Similarly, some Serbs were also skeptical—though with a political valence running in the opposite direction—and rumors swirled that Milošević had been poisoned.47 Nevertheless, a diplomat reported that he never heard a serious Bosnian politician talk of a conspiracy theory regarding Milošević’s death,48 and these claims were not central in Bosnian media coverage of the death.
Although these conspiracy claims are interesting for their diverse perspectives, they say more about the lack of trust that some ordinary citizens—of different ethno-political identities—have toward the Tribunal and the countries that support it. Furthermore, attitudes toward Milošević’s death provide some clues as to how Bosniaks understand the effects of the trial: The overwhelming sentiment of disappointment and anger that Milošević had not lived to the end of his trial comes through strongly in Bosniak’s negative attitudes about the trial’s legacy.
V. Effects and Implications: Divergence, Disappointment, and Persistent Nationalism
Bosniaks were clearly disenchanted with the process and outcome of the Milošević trial, but apart from their perceptions, what have been the effects of the trial on Bosniaks more generally—on politics, inter-ethnic relationships, and Bosnia’s future? We can identify effects related to three main areas: reconciliation, victims’ recovery, and politics. Regarding reconciliation, there were divergent attitudes, with a minority of respondents arguing that the trial has had little to no effect as it merely reinforced each ethno-national groups’ opposing perspective of the war, while others believed that the failed trial has worsened inter-ethnic accommodation because an opportunity for assessing blame and creating a common narrative was eclipsed, and nationalists could continue to deny past atrocities. Some also saw an indirect benefit to long-term reconciliation due to the vast evidence collected and revealed. Bosniaks also by and large agreed that their recovery or sense of justice has been harmed by the failed trial—their “victimhood” has not been alleviated. Last, there is profound disappointment in the continued nationalism and divisiveness marking the Bosnian political scene, including the loss of the genocide case at the ICJ, which interlocutors see as connected to the Milošević trial.
A. Effects related to reconciliation and the creation of a common narrative
There is no single Bosniak view on how the Milošević trial has affected inter-ethnic social relations and reconciliation. One common perspective holds that people’s views about Milošević’s role were already set and were not altered by the trial; another view, however, holds that the lack of a verdict has reinforced inter-ethnic tensions and nationalism because there is no official statement about Milošević’s role and his guilt—as Bosniaks are confident would have been shown. Yet a third view suggests the unfinished trial could still contribute to long-term reconciliation as it has provided a great deal of evidence about the facts of the war and its crimes.
1. Little effect on reconciliation
Though heterogeneous along many social and political spectra, Bosniaks are quite homogenous in their assessment of war guilt, in a way that suggests the limited utility of the international trial model. One of the central themes of Bosniak reactions to Milošević’s death was the acknowledgement that “we” already know Milošević is guilty and that, because he would have been found guilty had the trial finished, the lack of an authoritative narrative is not, in itself, problematic: An official verdict is unnecessary and would unlikely change anyone’s views.49
Dragan Golubovic of Sarajevo’s Media Center stated that people generally did not follow the trial and that their opinions were quite stable regardless of the news reports from The Hague; Milošević’s guilt was already presumed among Bosniaks and Croats—“No media in the Federation ever presented the slightest doubt about his guilt for the charges”50—while many Serbs saw Milošević as defending the Serbian people.51* This belief was also reinforced and given legitimacy by evidence presented at other trials and the particularly shocking visual evidence, such as the Škorpijoni execution video. Furthermore, the Rule 98bis Decision52 of June 2004, in which the Chamber found that the trial should continue as enough evidence existed that Milošević could be convicted, reinforced Milosevic’s guilt for some. Referring to the Decision as a “semi-verdict[,]” Eldin Hadžović argued that “When we say he was not convicted, that is not enough without a footnote that he would have been found guilty.”53† Several respondents also compared the terminated trial to the death of Hitler: Although he was never officially found guilty, “we all know he is.”54 Thus, from this view, the trial was not particularly influential: Although it may not have changed attitudes, it has reinforced existing attitudes for some Bosniaks.
Divergent collective narratives about the past may be functional, because one’s individual security and identity are often tied up with group security and identity.55 As one anthropological study in Foča, Bosnia, a town heavily affected by war crimes, put it:
In such a polarized environment, it was clear that for most people, the ethno-political collective narratives made more sense and offered more security than “individual justice” and “shared truth” of the transitional justice paradigm. The ICTY’s attempt to break up collective narratives was thus [in one respondent’s words] transformed from a promise of peace to a threat of war.56
Although these perspectives illustrate the holistic nature of postwar transitional justice and the need to address the broader ideologies that led to specific atrocities, they are also examples of the “expectations gap.” Many Bosniaks have measured the Tribunal and the Milošević trial against standards of justice and reconciliation they cannot achieve. To some degree, Bosniaks’ disappointment with international law as a solution is a function of their earlier, optimistic tendency to see international prosecution as strongly correlated with justice as they understood it.
2. Lack of closure on the past—a challenge to reconciliation
By contrast, other interlocutors believed that the trial has actually worsened inter-ethnic tensions: Without a guilty verdict to give formal closure or establish an official record, creating inter-ethnic reconciliation and a common narrative become even more challenging. In political terms, the trial’s termination has made it easier to deny genocide and to deploy nationalist rhetoric on all sides.
This view is, in a sense, the logical corollary of what Waters calls the “authoritative narrative theory”—the belief that trials create consequential narratives:* Because a guilty verdict would have supported and given authoritative legitimacy to Bosniak’s (and all victims’) arguments about their suffering, its absence necessarily sets that project back. A Srebrenica survivor, Kada Hotić, describes the potential of the trial and the impact of Milošević’s death on that potential in just such terms: “Truth be told, it was not the goal of any victim to have defendants suffer, but simply to have them serve their sentences so this whole story becomes a part of the truth of everything that happened. With his death Miloševic’s role in Bosnia’s tragedy would not become part of the judicial truth.”57 A political scientist at the University of Saraejvo, Nerzuk Ćurak, concurs on the importance of an authoritative judgment: “The indirect consequences [of the failed trial] primarily relate to an absence of fundamental proof of the character of the war … This way everyone continues to promote his truth about the war.”58 And another respondent: “Right now the discourse over the war, its nature, beginning, ending is reduced to a matter of opinion, so my opinion is the same as anyone else’s and I have nothing to back me up.”59
The effect is not merely a frustration of Bosniaks’ ability to prove, legally, what they know to be true, but also the license they believe it affords Serbs to deny that truth. Bosnian Army war veteran Enver Redžanović noted that the lack of a verdict is now being politically used by Serbs in Bosnia and Serbia (especially by elites), who emphasize that even the Tribunal could not prove his guilt, thus leading to a relativization of the past and the war.60 Bosniak journalist Merima Husejnović agreed that the trial’s termination has contributed to a lack of closure and reconciliation on the past: “Four years after his death, they [some Serbs] are still using every opportunity to mention him and the fact that there’s not any official document that says he’s guilty, even though we know he is.”61
Interestingly, almost no interlocutors mentioned the genocide convictions and life sentences of Bosnian Serbs Vujadin Popović and Ljubiša Beara for their role at Srebrenica.62 Although these convictions clearly establish responsibility and confirm the existence of a JCE related to the Srebrenica genocide, it appears that Bosniaks perceived the most senior actors—Milošević, and now Karadžić and Mladić—as more important to the confirmation of their truth, and thus to reconciliation.
3. Creating a record and a common narrative for the future
Despite the disappointment and frustration with the Milošević trial, other interlocutors noted that the trial did produce volumes of evidence and testimony that have created a significant historical record of Milošević’s actions and Serbia’s role, which could play a role in long-term reconciliation and creating a common narrative. Although evidence is clearly not the same as an authoritative judgment by an international tribunal, as Waters argues, it does hold important weight. As Nielsen demonstrates, the information amassed by the Tribunal is invaluable to historians and researchers who will help produce future narratives. Had Milošević never been indicted, arrested, and tried, much would have been lost, forgotten, or erased from memory.
Almost all Bosniak respondents reported that the creation of a historical record of evidence should be seen as a significant beneficial effect of the trial, regardless of its outcome. For instance, Srebrenica survivor Kada Hotić, who lost her husband and brother, had great hopes that the ICTY would contribute to the acknowledgement of the truth, and believes that although this has not yet occurred, the ICTY is still significant because it has produced “the evidence and proof that will someday make [Bosnian Serbs] understand they lied to themselves.”63 Others also believe that the Milošević trial has contributed to a larger discourse on the past in the region that has made it harder to live under the illusion of innocence.64 For example, the screening during the trial—and on television in the region—of a video showing the Škorpijoni paramilitary group executing a group of bound Bosniak men from Srebrenica was perceived as powerful and conclusive evidence of Serbian responsibility for crimes in Bosnia.65 Graphic images, particularly of human rights abuses, can play an indispensable role in promoting knowledge, awareness, and potentially responsive action;66 quite simply, the Škorpioni video thus made it harder to deny the crimes. Bieber’s chapter shows how the video created important, albeit temporary, shifts in awareness within Serbia, and interlocutors see a similar effect in Bosnia.67
B. Effects related to victims’ recovery
Bosniaks demonstrate varying attitudes regarding the relationship between justice and individual healing or recovery—a relationship that is the subject of debate within the study of transitional justice as well. There are many possible meanings of justice that might aid recovery for a given individual;68 prosecution is only one way, and for some, it may not even be important. One research project noted the complexity of attitudes felt by a small group of Bosnian victims (primarily Bosniaks) who testified in war crimes trials:
[W]hile the vast majority of witnesses supported war crimes trials, there were far less certain about whether justice had been rendered in the cases in which they had testified. Tribunal justice, they said, was capricious, unpredictable, and inevitably incomplete. For the witnesses, full justice was far larger than criminal trials.69
This lack of closure may mean that the hope of recovery and “moving on”—often touted as a goal of transitional justice—may be out of reach,70 particularly as victims feel that the politics of the past still exist in their everyday present lives. As a Bosniak psychologist noted:
It [the war] was not finished in terms of military defeat on either side, nor in terms of a defeat of certain politics. I’ve heard it so many times that closure one way or the other would have been very important. At this point, it is not so important for us to be right or vindicated, it is just [important] to put an end to it all and this way [without a verdict], there is no end. There is no legal, political, or military ending.71
Political scientist Ćurak agrees with these negative effects:
Bosniaks as a major victim of an aggressive invasion orchestrated by Belgrade on their country have been even further pushed into a greater victimhood [as a result of the failed trial] and many of them remain imprisoned in the past which prevents them from living a productive and forward looking life.72
Srebrenica survivor Subašić agrees that recovery has been difficult, and she believes that a guilty verdict would have made a difference: “With the trial, the verdict would have helped establish respect for victims and it would have shown that these trials are capable of bringing justice, and that would be a starting point to many things like improvement of multiethnic relationships and victims feeling a sense of justice being fulfilled.”73 She added a point echoed in the transitional justice literature: that lack of justice and closure has made it difficult for many victims to return to their homes and communities.74 Of course, obstacles to refugee return arise for many, interrelated reasons, making it exceedingly difficult to pinpoint the independent effect of the Milošević trial or even the ICTY in general.* Nevertheless, what is important here is that Bosniak respondents believe that, had the trial ended differently, the opportunities for refugee return would be better. The Milošević trial did not just have direct effects; it has also interacted with other events to influence Bosniaks’ perceptions. Those perceptions—about the ability to return home and the feeling of having a home—are connected to victims’ prospects for recovery and must be considered in any appraisal of inter-ethnic social relations.
The termination of the trial therefore means that for many victims, justice was not delivered; in this sense, and quite apart from any concrete effect a verdict might have had on reconciliation, the victims feel cheated. The negative effect here is derived from the termination of the trial—a contingent outcome, from which we should not necessarily conclude that trials as such are defective in this way. Criminal trials may still be an important tool for recovery as they legitimize and give public recognition to suffering. As one interlocutor noted:
To become again a functional person, to be able to escape the mental chains of victimization, I do believe that [justice] is important and necessary. Without this initial step [of justice being served], victims are paralyzed in the parallel universe of their own tragedy while the rest of the world goes by, being reduced to the role of a village idiot who pulls every passer-by by the sleeve to tell their story, and to plead for understanding and justice… [T]he sense of injustice and the related feelings of impotence are mentally debilitating to us.75
Still, by this same logic, the Milošević trial’s potential for healing was, to a significant degree, bound up not only with the contingent chance of keeping Milošević alive to verdict, but of securing a conviction—and in particular for genocide, which was by no means certain. One study concluded that international courts such as the ICTY could, “under the right conditions, acknowledge the suffering of those most directly affected by war crimes and help them discharge their moral duty to testify on behalf of the dead,”76 but the Milošević trial, sans verdict, did not fulfill those conditions.*
C. Effects on Bosnia and its politics
1. Reinforcing nationalism: Political uses of the trial
Much as they believed a lack of closure has hindered reconciliation, many respondents believe the lack of a verdict has reinforced nationalist ideology and rhetoric among both Bosniak and Serb politicians, making it less likely that the crimes of the past will be directly confronted in the political process. Many of these critiques identify the individual focus of the trial process as problematic, because it fails to engage with the collective, national aspect of the crimes and the purposes for which they were committed.
There is no evidence that Bosnian Serb leaders directly used the trial to rally nationalists, but Ćurak sees an effect on politics: “[T]he worst consequence of Milošević’s early death was the continuation of secessionist politics in the RS; it is that kind of politics that makes a confrontation with the crimes avoidable.”77 For Bosniaks, a verdict of genocide would have linked the creation of the RS to genocide, weakening its legitimacy and undermining secessionist claims. Ćurak emphasizes, “If Milošević had been sentenced, the political-legal capacity of RS would have been significantly relativized, regardless of the fact that all sentences in The Hague are of an individual character.”78
Mujkić, who has written extensively on nationalism in postwar Bosnia, concurs, arguing that Milošević’s death made it more likely that “justice will never prevail”: Nationalism is being fueled by the “revival of overall victimization, hate speech, denial of genocide.”79 Like Ćurak, he criticizes the international community’s focus on individuals and legal process instead of the nationalist politics that continue to cripple inter-ethnic accommodation and the creation of a rights-protective democratic Bosnia:
[T]he major downfall of the general conception of the Hague Tribunal was that the expansionist nationalist ideology has not been tried. We deal with details, yet miss the overall context that made those details logical. The focus exclusively on individual actors without the greater picture is elusive and misleading.80
Bosniak leader and former member of the presidency Haris Silajdžić expressed a similar sentiment: “[I]t is ironic that these days coinciding with Milošević’s death, we have certain domestic and international political powers that are trying to make sure that Milošević’s project in Bosnia survives and the way they are trying to do that is through constitutional changes.”81 In short, “Milošević is dead and his project is alive.”82
This view is not confined to Bosniak areas, as RS political analyst Tanja Topić noted: “What’s missing here and never occurred was a confrontation with [Milošević’s] politics and that is still missing to this day.”83 However, although many Bosniaks feel that the past crimes are not being sufficiently recognized (particularly by other Bosnians), there are many Bosnian Serbs, for example in the Podrinje region, who are frustrated that Bosniak losses, but not their own, are more recognized by the international community.84
Not a single Bosniak respondent or media source reviewed believed that denial of wartime atrocities by Bosnian Serbs has lessened; furthermore, they believe that partial moves by RS leaders toward acknowledging formal responsibility for wartime atrocities were compelled by outside actors.85
Thus, there was little genuine shift in RS policy or attitudes during the Milošević trial, and even if there was any change, this was likely not due to changed public attitudes or the trial.* In fact, Damir Arnaut, a senior legal advisor to the Bosniak member of the BiH presidency, believes that it was the Krstić case—in which the Bosnian Serbs were found to have committed genocide in Srebrenica—that had the more significant impact on RS policy.86
2. “The deceased has been rewarded:”† Effects on the ICJ Bosnian Genocide case
Many Bosniaks, particular political elites, have also argued that the failure to hold Serbia responsible for genocide in the Bosnian Genocide case before the ICJ was due in part to the failure to convict Milošević at the ICTY.87‡ For many, the failure to find Serbia guilty of genocide was even more significant and generated more interest than the end of the Milošević trial;§ Bosniak leaders were so sure they would win that the verdict in February 2007 was a shock.88 Bosniak elites were especially invested in this case as its outcome could have laid collective blame for genocide at the feet of Serbia, just as they were very concerned during the Milošević trial about proving a connection between Belgrade and the RS.
The shock may have been genuine, but it also indicates the way in which the trial’s outcome was used by political elites and survivors to further their own ethno-national goals. At the time of Milošević’s death—when the ICJ verdict was still pending—political leaders made the Milošević-Serbia and ICTY-ICJ connection very clear: leader of the Stranka demokratske akcije (Democratic Action Party or SDA) Sulejman Tihić declared that “History will remember him as a first leader of a country charged with genocide at the ICJ.”89
Efforts to assimilate the fact of the Milošević trial’s termination to the pending ICJ case began immediately after Milošević’s death, and most of the concern was pragmatic, centering on access to and transparency of key evidence from Serbia, in particular the minutes of the VSO, which the ICTY had secured, but with a promise not to deliver them to the ICJ.90* Bosnia requested that the ICJ demand these unedited documents, but the ICJ neither requested nor pressured Serbia for them.91
Once the ICJ judgment was issued, the Prosecution’s earlier decision to accept a deal with Serbia regarding the confidentiality of the VSO documents itself became a focal point among Bosniaks—a way to explain the undesirable judgment and shore up the narrative of Milošević’s and Serbia’s guilt. Hajra Catić from the Mothers of Srebrenica made the causal link to the ICJ case directly: “If they had secured the [VSO] documents [from Belgrade], the whole verdict might have been different.”92 One respondent believed that the media placed more importance on the ICJ case than ICTY cases, seeing a win at the World Court as having the potential to compensate for the Milošević “loss” at the ICTY—a “good opportunity to prove aggression upon Bosnia.”93
The interactions between the two trials in Bosniaks’ political understanding track one of the core tensions in the ICL model and one of the factors that—as much transitional justice literature suggests—may account for the limited utility of trials in altering politics. Despite the fact that the ICTY’s goal is to individualize rather than collectivize responsibility,94 Bosniaks—and Serbs and Kosovars, as other chapters show—understood, accurately, that Milošević’s notionally individual trial was intimately linked to the state-level proceedings at the ICJ and to broader questions of collective responsibility. Nor was this impression limited to juridical calculations: Many Bosniaks still point to Serbs in the RS and Serbia as playing a key role in their suffering and negatively affecting the creation of a unified and democratic Bosnian state that serves all, perspectives that are also exacerbated by the observation that nationalism in Serbia and among Serbs has not waned as much as they would have expected and hoped for.
Thus, the Bosnian Genocide case was seen, through a political as much as a legal lens, as a way to hold Serbia legally and politically responsible for the war.95 A verdict against Serbia would have confirmed the status of Bosnia as a victim state, which could have had important political and economic implications, such as reparations and international support.96 Given the outcome, however, the case also served as a way for Serbs to see themselves as less to blame:
The Serbian public interpreted this [the ICJ case] as proof that Serbia was not involved in the war against Bosnia-Herzegovina. Following the ICJ’s verdict, denial acquired a new dimension. The part of Serbian society that likes to call itself liberal, and that had previously appeared ready to discuss the Serbian state’s responsibility for the war against Bosnia-Herzegovina, found in the ICJ’s verdict an alibi for denying the fact of genocide. Denial is present most strongly in political discourse, in the media, in the sphere of law, and in the educational system.97
According to some academic Bosniak observers, the most important political outcome of a guilty verdict for Milošević or a judgment against Serbia would have been to delegitimize the RS as a product of genocide, lending credibility to the Bosniak nationalist argument that the RS should be dismantled in favor of a more unitary Bosnian state.98 It is in this context that Bosniak views about Milošević’s death, his trial’s termination, and subsequent, retrospective gestures toward the VSO documents must be understood: not as the acceptance and internalization of the ICTY’s preferred approach to individual responsibility, but as its instrumentalization for a project of political change driven by collective guilt.
VI. Law, Politics, and Reconciliation Reconsidered—Moving Forward from Milošević
Bosniak perspectives on the Milošević trial are complex, and must be understood not only within a legal, but also a broader sociopolitical framework, such as transitional justice offers. Scholars of transitional justice persuasively argue that international prosecutions are just one important means to achieve justice and reconciliation following wartime atrocities, but certainly are not enough, and in some cases, they may even do more harm than good. For victims especially, attaining a sense of justice and reconciliation with neighbors and other citizens requires broad social and political transformations that go far beyond the formally juridical: new political realities on the ground, ability to return home, protection of human rights, inclusive and nondiscriminatory education, economic improvement, and positive relations with one’s neighbors—for example, a feeling of komšiluk.*
A. The reach of law and justice
Milošević’s arrest, transfer, and trial brought great satisfaction to Bosniaks who saw him as supremely responsible for the Bosnian war and its crimes; they also had high and positive expectations for what an international criminal trial—especially with its expected, inevitable guilty verdict—could achieve for inter-ethnic reconciliation, the creation of a common Bosnian narrative, the drowning out of genocide denial, their own personal and group recovery, and the more abstract justice so many people say they are seeking.
Although these hopes and expectations may have been misplaced or exaggerated, they have colored the current perspective Bosniaks have on the legacy and effects of the Milošević trial. Two divergent responses stand out. On the one hand, many Bosniaks do not see much effect as the outcomes they expected have not been realized: reconciliation is still a goal more than a reality; a common Bosnian identity and narrative is lacking; genocide denial, even at the elite level, still exits; and many say that recovery from past trauma is either impossible or is still only a distant hope. When one adds methodological complexities of finding causal relationships between a trial and sociopolitical change, the view that the trial had little influence becomes even more understandable.
On the other hand, those respondents who believed or perceived that the trial did have an effect—about 90 percent—were overwhelmingly likely to see those effects as negative, in personal, social, and political terms. For many of these respondents, these negative effects were contingent, having arisen from the trial’s termination; they believed more positive outcomes would have come from a completed trial—with, of course, a guilty verdict, especially on the genocide charge. Given the actual outcome, these respondents perceived that the terminated trial has reinforced, rather than caused, competing narratives on the past, challenges to reconciliation, nationalist politics, and overall a lack of closure. For instance, all Bosniak respondents asserted that Serbs have not been forced to come to terms with what they did or supported during the war, and some of these respondents believe the termination of the trial worsened this state of affairs.
Despite this pervasive cynicism and pessimism, Bosniaks also cited some indirect beneficial effects of the trial. Despite the lack of a verdict, the massive amount of evidence and testimony resulting from the four-year trial is and will be invaluable toward creating a common narrative; some Bosniaks argued that this has already made it a little harder to deny genocide.
In general, Bosniak interlocutors appeared more focused on the symbolic meaning that a genocide verdict would have had, quite apart from any direct influences the trial has or has not had on them, other citizens, or the state itself. It is almost as if pondering effects and implications is an academic question with less resonance for respondents, compared to a sentiment that might sound something like this: Milošević should have been held officially and legally responsible, even if this would not have had any tangible difference in my life or the life of our fractured state. To the degree this is accurate, it is an appeal to pure justice.
B. The staying power of politics
Far from confirming a positivist understanding of law, the views of Bosniaks illustrate how law is fundamentally interconnected with and influenced by politics and society—law occurs in a political context, not separate from it. Bosniaks (and many citizens of the region) saw the Tribunal and the Milošević trial as an institution and an event with the potential to influence Bosnian and regional politics. For example, many respondents saw the Tribunal’s rules and procedures as benefiting Milošević politically by giving him a platform; they believed deals made with Serbia to keep VSO documents confidential had a negative impact on Bosnia’s genocide case at the ICJ where the loss was seen as politically consequential, and some interpret the lack of a verdict in the trial as contributing to the legitimacy of the RS and nationalist politics in Bosnia.
Additionally, reactions to the trial suggest the usefulness of a constructivist approach to law that sees the Tribunal as an important actor in processes of norm socialization and democratization. The Tribunal has been instrumental in creating more positive attitudes toward accountability and the need for trials in general,99 but the ICTY should also be seen as playing a supporting and reinforcing role among a network of international and domestic actors whose goals are to encourage greater reconciliation, democratization, and Europeanization within Bosnia.100 In terms of its impact on Bosnia, the “ICTY’s main contribution seems to have been its utility as a political lever, rather than its utility as a tool of post-conflict reconciliation[.]”101 Even if individual trials have only limited influence—or their influence is hard to measure—the Tribunal as a whole can and should be seen as contributing to a broader process of norm socialization and institutionalizing the rule of law in Bosnia. Even though Milošević’s trial did not finish, “[it was] proof that he was reachable, that justice can be reached, and there is a positive feeling about the fact that he was in jail for so long.”102 In short, even a terminated trial is support for the rule of law in society.*
In terms of Bosnia’s sociopolitical realities, Bosniaks are deeply pessimistic about the current state of their politics and social relations, and they exhibit a common tendency to posit linear and causal connections among the past, present, and future—seeing, for example, that Serbian nationalist politics and crimes of the past did not end with the war, nor have they been ameliorated by Dayton or trials at the ICTY; nor, it seems, is there any expectation that they will improve.† In light of all this, it is difficult for Bosniak respondents to see these sociopolitical realities as not connected to Slobodan Milošević, whom they view as the key creator of Serbian nationalism, even if the evidence for a direct connection between the trial and the current state of politics is tenuous. The terminated Milošević trial—together with Bosnian Genocide—was therefore seen as a missed political and psychological opportunity to hold not only an individual but also a nation accountable for years of suffering.
Nevertheless, for Bosniaks, an aborted trial was better than no trial at all. Some victims have been comforted by the fact that the last five years of Milošević’s life were spent in a detention cell and not as a political leader or in hiding. Many observers of contemporary Bosnia agree that it will take a holistic and multifaceted approach to achieve greater inter-ethnic reconciliation and justice, but the lack of violence, the proliferation of civil society organizations working toward these goals, and the numerous war criminals currently in prison or on trial—including Karadžić and Mladić, the two leading figures whom, even more than Milošević, Bosniaks associate with their victimization—are evidence of some progress.*