MARK A. DRUMBL
Washington & Lee University*
Although it might seem that the Milošević trial had little legal consequence, and limited political effect on Serbs, it actually proved to be of great legal value to Serbia. Notwithstanding its tedium, the trial—and indeed the work of the ICTY more generally—has preserved the dignity of the Serbian nation. By individualizing responsibility—that is, by focusing it on Milošević—the ICTY has helped spare Serbia from collective legal denunciation. Although Milošević relentlessly presented the ICTY as attacking Serbia—a narrative that so many observers have implicitly accepted—the ICTY protected Serbia as well.
In an elegant contribution, Bieber posits little causality between the Milošević trial and Slobodan Milošević’s dénouement. For Bieber, fundamentally, Milošević’s political legacy is scant: No significant political party in Serbia carries his mantle. His ideological inheritance is ignored. Milošević’s politics failed his fellow citizens, but, ultimately, also proved themselves to be a failure. This is not attributable to international law, according to Bieber, but rather derives from politics. Demographic change, ideological incoherence, and internal conflict gutted Milošević’s political party, as well as cognates and allies. Milošević’s death was not a call to arms, but—for Bieber—“an opportunity to close a chapter.”1
The paradox for Bieber is that, when it came to dramatizing his trial, Milošević performed well, at least initially, yet his success “did not translate into increased political support for his party or other parties with a nationalist platform.”2 His decision to speak in Serbian to Serbia, while the Prosecutors aridly spoke in English legalese to the judges, may have bifurcated the audiences and hobbled the proceedings, but this choice ultimately did not yield any dividends for Milošević.*
Serbs watched the trial, but quickly became bored. The languid proceedings dragged on for years, after all, in significant part owing to Milošević’s own obfuscation. Yet trials fundamentally are tedious; the infotainment they provide is overrated. Assuredly, some episodic frissons arise—the impeached witness, the spontaneous confession, a rapier cross-examination—but these are few and far between. The solemnity of trial leads to sterility; the machine of procedure crushes vivacity; managerial justice emits manufactured truths; and, once they become fulsome, dilatory tactics distract and divert as much as they delay and postpone. Is it unsurprising, then, that viewer interest soon flagged, and numbers dropped?
In part, Serbs averted their gaze from the trial because, as Bieber wisely notes, Milošević’s narrative was one that hearkened back to a period of “suffering, shortages, and war” for the Serbs themselves—a period of time they would sooner prefer to forget. The televised proceedings may have resonated, but also were beside the point, as they resonated with a chord no one really wished to replay. Milošević’s efforts, then, were hortatory. In a Serbia where “forgetting is stronger than remembering[,]” the trial turned into a “side-show.”3
Bieber’s orientation stands in contradistinction to that of Armatta, who spent many days over nearly three years diligently attending Milošević’s trial. In her recently published, encyclopedic chronicle, Twilight of Impunity, as in her chapter, she underscores that, despite its imperfections, the trial did matter. In fact, for Armatta “the proceedings against Milosevic accomplished a great deal.”4
For Armatta, the central legacies of the Milošević trial are not political, but legal: learning from law for the sake of reforming—and ostensibly improving—law itself. In this regard, the Milošević trial instructs on the perils of self-representation;5 warns of excessive coddling of an accused; reveals the danger in sprawling indictments; and underscores—as a matter of practicality—the need to make sure defendants take their medications properly, smoke less, stop drinking, and are kept from acquiring contraband. In particular, Twilight of Impunity unveils the corrosive effects of Milošević’s self-representation: by facilitating Milošević’s serving as his own counsel, the ICTY committed its “most grievous mistake,” thereby enabling him to treat the trial “as a joke.”†
Bieber appears uninterested in legal legacies; his concern is with the political. But it is not clear one must choose: The fact that war crimes trials may offer concrete legal instruction while remaining politically superficial suggests that trials straddle multiple, interstitial, and fluid identities. The obverse also is possible: Legally inconsequential or even flawed trials may offer concrete political instruction and a pedagogy of transition, even transcendence.
Serbs came to see Milošević as a political failure—defined by politics as “either a bad leader or a victim”—but not as a legal transgressor, denounced by law as a war criminal.6 On the one hand, then, Milošević’s political failure precluded a nationalist backlash. On the other hand, as Bieber points out, the legal effect of the trial was nominal—doing little to push Serbs to “confront the crimes committed by the Milošević regime[.]”7 Would it have mattered had Milošević’s trial concluded with conviction and sentence, instead of being prematurely halted by the death of the antagonist—or protagonist, as Bieber and other authors have suggested he fleetingly was to many Serbs? Not to sound nihilistic, but probably not. Milošević may have cheated a verdict, but it was a verdict no one cared too much about anyway.
But although this might seem to indicate the Milošević trial had little legal consequence, it actually proved to be of great legal value to Serbia. Serbs may have lost interest in Milošević’s trial, but this nonchalance and disengagement is itself an instance of the trial’s efficacy. The trial, and the ICTY generally, offered a golden opportunity to blame Milošević, his cohorts, and a small number of thugs, thereby artfully displacing responsibility from the collective to a handful of individuals. It is true that the Prosecution’s JCE could in theory catch up all Serbs charged by the Tribunal,* but the real point is just how few they actually are. Personalizing guilt by laying it on the shoulders of the hundred or so apparently most blameworthy individuals collectivizes the innocence of all others. Yet these others were indispensible to the normalization of Milošević’s violence: Voters who supported him, citizens who toasted him, youth who fought for him, families who upgraded their lot because he had uprooted the lives of others, communities who shared his solidarities—but for the support of all of these constituencies, violence would not have been mainstreamed throughout the Balkans. The few who stand accused immunize those who stand below and prop them up. Milošević’s braggadocio—his refrain of l’état (victimisé, affligé) c’est moi—absolved others of responsibility for their small function in the entrails of a criminal state. And not only are these others absolved, they are themselves excused from further reflection. In fact, as Bieber points out, notwithstanding the spectacularization of the genocide at Srebrenica, Milošević’s trial did not actually increase awareness among Serbs about the crimes committed—putatively on their communal behalf—by Serb forces generally.
In an even more direct way, the ICTY’s work also helped insulate Serbia from state responsibility before the ICJ, as Shany discusses. Redacted evidence, curial timidity, and liability shopping each conspired in their own way to deflate the ICJ’s findings in the Bosnian Genocide case and, ultimately, to lead to the most anemic of remedies.
In short, notwithstanding its tedium, the work of the ICTY—whether intentionally or inadvertently—preserved the dignity of the Serbian nation. Milošević may have personified Serbia, but he personalized the blame. The work of the ICTY individualized responsibility and thereby helped spare Serbia from collective denunciation as a matter of law. Although Milošević presented the ICTY as attacking Serbia—a narrative that Bieber and, really, so many observers have implicitly accepted—the ICTY protected it as well.