FLORIAN BIEBER
University of Graz*
The question a court asks is different from the questions historians ask, and the evidence likewise has very different purposes; also, a final verdict may actually serve to inhibit academic debate, whereas in Milošević there is only uncertainty and contestation, leaving more space for debate to emerge. There is little doubt that without the ICTY, the history of the Yugoslav wars would be written differently, and future scholarship will benefit from the sources made available through the ICTY in ways we cannot anticipate. Yet at the same time, the Tribunal is not the scribe of history: A verdict in the Milošević trial would have not provided a breakthrough in scholarship on the dissolution of Yugoslavia. Most contemporary scholarship assigns Milošević a central role in the dissolution and the subsequent wars, and does so even in the absence of a decisive declaration by the Tribunal. However, the process by which the Tribunal constructs its own historical record features important points of communication with and difference from conventional scholarship. Historians would be ill-advised either to ignore the evidence gathered by the ICTY or to uncritically rely on it without reflecting on the methodological differences and similarities between the tasks of lawyers and of historians, each creating their own narrative of events.
Slobodan Milošević’s untimely death before the end of his trial was a setback for human rights and transitional justice, but it is less clear that historians exploring the dissolution of Yugoslavia and its wars were similarly disadvantaged in their research by the lack of a verdict. In his chapter, Nielsen suggests that the Rule 98bis Decision might serve as a useful replacement for the missing verdict. However, we might as well ask if scholarship needs either.
Implicit in Nielsen’s inquiry is the question of whether history can be written by trial—even if only, as he argues, as a first draft. Ever since Nuremberg gave crucial impetus to the study of the Holocaust, war crimes trials and scholarship have been closely intertwined, and this has been true for the Tribunal and study of the Yugoslav dissolution. At the ICTY, scholars regularly have been witnesses for both the Prosecution and Defense. In turn, academics have begun to draw on the materials disclosed in court to (re)write the histories of Yugoslavia’s disintegration—arguably, no history of this period can afford to ignore the materials made available at the ICTY.1 In addition, a plethora of more or less academic titles have been devoted to the ICTY itself. It is, however, not a relationship without difficulties. The purpose of this chapter is not to explore all the details of this relationship, but just one particular aspect, especially as it relates to the Milošević trial: What significance does a verdict—or the lack of one—in a war crimes trial have for the writing of history?
Certainly, a court cannot be a replacement for the work of historians. Even if a court were understood to produce “definitive histories of conflicts[,]”2—a view Nielsen clearly does not subscribe to—the judicial process inherently focuses on determining the guilt of an individual: The historical record it reveals is inherently a by-product, not its purpose.3 So, in order to assess how central a verdict—and the process or reaching one—is for scholarship on Yugoslavia, this chapter considers three aspects: the questions asked in court versus the questions asked by scholars; the role of evidence that a court amasses; and, finally, the significance of the verdict itself.
At the center of a criminal case, including a war crimes case, is a question: Is the defendant guilty of the crimes accused? Any evidence not helping to prove or dismiss this question is irrelevant to this core inquiry. Viewed in this way, the rich context presented in the Milošević trial, from the historical background provided by Audrey Helfant-Budding,4 to the Prosecution’s emphasis on the political plan of the Accused, including Milošević’s purported political goal of a Greater Serbia, are in fact indications of weaknesses in the Prosecution’s case. Had the Prosecution possessed clear evidence—a “smoking gun” linking Milošević directly to the crimes he stood accused of—these elements of context and background would not have been necessary.*
Quite apart from its relevance, the particular historical interpretation advanced by the Prosecution is unhelpful for understanding the dissolution of Yugoslavia. When Geoffrey Nice argued for the joinder of the three indictments against Milošević, he said it was warranted because of a “common scheme, strategy or plan, namely the accused Milosevic’s overall conduct in attempting to create a—in quotation marks—‘Greater Serbia,’ a centralised Serbian state encompassing the Serb-populated areas of Croatia and Bosnia and Herzegovina and all of Kosovo.”5 Although such a view might have been useful—even necessary—for the Prosecution’s purposes in seeking joinder,* few scholars would argue that Milošević had a clear political vision underpinning his use of violence. More scholars and journalists agree that—from the use of violence to demobilize the opposition,6 to his attempts to draw on nationalist support7—Milošević was mostly motivated to secure his own power, rather than by any specific political or ideological project.8 Indeed, in his chapter, Prelec argues that—the Prosecution’s preferred arguments notwithstanding—the evidence actually introduced at trial supports this view of Milošević. The argument that Milošević ordered or oversaw war crimes as part of a clear plan, including a political vision or ideology underpinning the crimes, was central for the Prosecution case due to the weakness of documentary evidence clearly linking Milošević to the crimes he stood accused of, and because of the formal logic of the legal standards for joinder. However, for scholarship this is not particularly compelling.
In addition, for historians and other scholars, the answer to a particular question is less interesting than the path of getting to it. To put it differently, if the trial at hand were not a war crimes case, but a simple murder in which the one person stood accused of killing another, the court will want to know whether A killed B or not. The historian will want to know the facts about this as well, of course, but will also be curious as to why A wanted to kill B, what the context in which the murder took place was, what the relationship between A and B was before the murder, and so on. For a court, in most cases, these kinds of questions are matters of motive, which are usually legally irrelevant.† The court will only resort to these sorts of inquiries if it lacks clear evidence proving that A is indeed the murderer—that is, evidence directly addressing its core concern.
In this sense, the absence of clear and easily demonstrable evidence linking Milošević to the crimes—and the more exotic or tangential forms of evidence which that absence led the Prosecution to rely upon—may have made this legally a less satisfying case, but this is precisely what makes it more interesting for historians, even if many would not share the Prosecution’s evaluation. Thus the apparent convergence between the lawyers and historians that the rich historical material introduced at trial suggests should not distract us from recognizing their fundamentally different interests in that material. The question of Milošević’s direct responsibility for the crimes is only one of many that scholars will be dealing with, and possibly not the most interesting one.
The historiography of the Holocaust can be instructive here in understanding the interrelationship between conducting trials and writing history. As Nielsen notes, one key debate within historiography of the Holocaust has been the dispute between intentionalists and functionalists. Whereas functionalists focus on the structures that allowed the Holocaust to occur, intentionalists place Hitler in the center of their scholarly attention and focus on the ideology of the Holocaust. After a peak of this debate in the late 1970s and early 1980s—before the much better known Historikerstreit—the stark opposition of these interpretations no longer seems particularly compelling; today, most scholars would argue that a combination of both approaches is essential, as structures and particular circumstances are necessary to understand the Holocaust, whereas the ideology, in particular of the Nazi leadership, is equally essential.9 Much of the significant scholarship in the past 20 years has sought to move beyond this particular debate.10 Since then, the most interesting and relevant scholarship has not been concerned with showing the degree to which Adolf Hitler ordered the Final Solution—the kind of question a court might be equipped to address—but rather focuses on the circumstances that enabled the Holocaust to take place and how individuals at different points in the echelons of authority participated or refused to.11
Similarly, recent literature on the wars in Yugoslavia has been less concerned with determining the extent to which Milošević was directly responsible for the crimes committed,12 but instead has focused on, for example, micro-mechanisms of violence13 and the internal dynamics of radical movements.14 Few of these studies would deny the centrality of Milošević: On the contrary, the literature assumes his responsibility and centrality, but asks different questions.
If the Tribunal can at best provide only one history, and addresses a set of historical questions which scholars might not find particularly relevant, it has nonetheless been extremely effective at revealing the historical record.
The Prosecution produced over a million pages of documents. What might have been a challenge for Milošević and his legal team—and the judges—to read is a treasure trove for researchers. Much of the information the Tribunal has made available through its proceedings might never have become accessible to researchers, or only after several decades. Beyond the documents, the transcripts of the case, the statements of the Accused and witnesses constitute a rich trove of materials that will contribute to the scholarship on the dissolution of Yugoslavia in as yet unpredictable directions.
The sheer volume of information might suggest that the Milošević trial offers us a comprehensive record, or at least a comprehensive source of information. But vast as the record is, it is still selective, and the selection is purposeful in ways that reflect the core question motivating a trial: The Prosecution seeks to prove the guilt of an accused, who in turn seeks to prove his innocence. As such, the record built up by the Milošević trial, as well as that of other cases at the ICTY, is incomplete. Those sifting through the materials and presenting them in court are expected to subordinate evidence to building a case;* incriminating evidence about individuals not on trial might only be included if it serves the purpose of the Prosecution or Defense.15 This is of course also a temptation among scholars, but would be considered biased scholarship, whereas at the Tribunal, it is an expected, even normative part of the predominant adversary model. The evidence amassed during the trial thus cannot be considered complete, and cannot be appreciated without accounting for its structural, purposive bias.
That same purposive structure of trial extends beyond just making documents accessible to historians, however; rather, the very process of trial imparts information about the qualities of those documents that, in turn, historians may usefully employ. As lawyers debate and judges consider the veracity and probative value of particular documents for the specific purposes of trial, they indirectly provide context and background on these materials for scholars. This includes sources already in the public domain but that receive additional scrutiny through the trial process. When Vojislav Šešelj spoke as a witness for the Defense in Milošević, the Prosecution played an excerpt from the well-known BBC documentary The Death of Yugoslavia, in which Šešelj explained that his paramilitaries “were getting weapons from Milosevic’s police from the then … Minister of Internal Affairs Radmilo Bogdanovic and when he was replaced from his successor.”16 In the trial, Šešelj did not deny the content of the interview, but explained that “for reasons of political propaganda, I threw Mr. Milosevic and Radmilo Bogdanovic into the entire story, wanting to annoy them and to cause on their part an improper political reaction.”17 Without seeking to resolve the question of whether Šešelj was lying to BBC journalist Laura Silber in 1995 or to the Chamber in 2005 (and again in 200818), the incident demonstrates how the Tribunal provides a feedback loop on the literature and sources of Yugoslavia’s dissolution.
The exchange with Šešelj also raises larger questions about the credibility of evidence in a context in which particular pieces of evidence do not ruin a good academic article, but can either help send an indicted war criminal to jail or set him free. The problems of veracity are of course not only of concern for prosecutors, defendants, and judges, but also for the historian working with the trial record.* Many of the problems arising from testimony are familiar to historians who have worked with interviews and especially oral history,19 and lawyers at international tribunals have even been likened to oral historians.20
However, whereas the oral historian is less interested in approximating a particular “truth” and chooses the method because it is subjective, the reconstruction of an objective truth is more central to the work of a court.21 Moreover, the functional convergence of oral history and legal testimony is ironic, as oral history often places particular emphasis on recording stories of communities that lack a strong written record or of disempowered groups with little influence on how written texts refer to them,22 whereas the focus of war crimes trials in leadership cases, such as Milošević, is normally on actors who, by definition, were not marginal, and were surrounded by massive volumes of documents.† Nevertheless, the reconstruction of the wars and the responsibilities for crimes committed is impossible without testimony, which shares functional analogues with oral history and is therefore of practical value to historians.
Still, the analogy is partial: The emphasis on evidence and on unearthing the “truth” in court proceedings diverges from the norms of historiography since the 1970s, which has rejected the strictly positivist aspiration to uncovering the raw material of history. The challenge to positivism in history and the constructivist turn in social sciences and humanities has meant that even if does not reject the positivist approach to historical evidence outright, the relationship between evidence and reality cannot be taken for granted.23
In discussing the value of the interim Rule 98bis Decision, the question Nielsen’s chapter (and Waters’ as well) implicitly raises is whether a final verdict in the Milošević case would have answered the question of legal responsibility in a way that would have provided the basis for a scholarly consensus on the responsibility of this key protagonist of the Yugoslav wars.
Of course, by consensus we cannot mean literal universality: Those strands of revisionism that absolutely deny Milošević’s responsibility would not have been affected by a final ruling, the more so as such authors generally do not accept the ICTY as a legitimate institution.24 But such voices are arguably as irrelevant to the scholarly debate on the wars of Yugoslavia’s succession as Holocaust deniers are to the study of Holocaust.
More serious is the question about the weight mainstream historiography might have given a verdict. If the evidence is public, the verdict of the Chamber would have been little more than an opinion about that evidence—though one with legal consequences—and scholars analyzing the same body of evidence might arrive at a different conclusion.25 The judges might have had the advantage of following all the evidence as a full-time job, but historians will have a longer time horizon and more familiarity with the context and languages. Thus, whatever its legal consequence, a judge’s verdict cannot be the ultimate interpretation of particular historical events. Nor can any one historian’s interpretation—in historiography, unlike in law, there is no last instance. A particular interpretation of events might enjoy consensus within the discipline at a given point, but this does not mean that new evidence, or even simply new approaches to the same evidence, could not “re-open the case.”
Thus, for historiography, the verdict is arguably less important than the trial itself. From this perspective the Milošević trial provided the substance without the conclusion—but the conclusion is less important for historiography of Yugoslavia’s dissolution. Indeed, to the degree a verdict does affect or constrain historical analysis, the lack of a verdict leaves more space for debate to emerge. The closure that a verdict provides can inhibit further academic debate, but in Milošević, there is only uncertainty and contestation.
There is little doubt that without the ICTY, the history of the Yugoslav wars would be written differently. The mass murders in Srebrenica would probably be less widely called genocide without the verdict in Krstić. Without the ICTY, the links between Serbian state institutions, the RS, RSK, and paramilitaries in Bosnia and Croatia would be less well-known. Innumerable details of great consequence for our understanding would still be waiting to be discovered years or even decades from now, once archives opened their doors—and some would doubtless have been destroyed or lost in the meantime. Future scholarship will benefit from the sources made available through the ICTY in ways we cannot yet anticipate.
The eminent historian Carlo Ginzberg reflected at length on the relationship between the judge and the historian and noted that the law’s very positivist understanding of evidence and proof should not be dismissed by historians, yet at the same time, the purpose of “proof” is different for historians than for judges, as “historical research should be, I think, the reconstruction of the relationship (about which we know so little) between individual lives and the contexts in which they unfold.”26 This context is not and should not be the primary concern of a court, or of the judges who actually reach the verdict.
The Tribunal is not the scribe of history. A verdict in the Milošević trial would not have provided a breakthrough in scholarship on the dissolution of Yugoslavia. Already today, most scholarship attributes to Milošević a central role in the dissolution process and the subsequent wars, and does so even in the absence of a decisive declaration by the Tribunal. If a verdict was not central for scholarship on Milošević and Yugoslavia, as it appears not to have been, the premature end of the trial due to Milošević’s death is less significant.
However, the process by which a tribunal constructs its own historical record features important points of both communication with and difference from conventional scholarship. Most important, historians might safely consider any verdict in a war crimes trial only as one piece of the puzzle in reconstructing particular events. In equal measures, they would be ill-advised either to ignore the evidence gathered by the ICTY or to uncritically rely on it without reflecting on the methodological differences and similarities between the tasks of lawyers and of historians, each creating their own narrative of events.