2005-11-22

Uncertain future of nobody's favorite soap opera

Between frequent rest breaks, Slobodan Milošević has used up three quarters of the time which was allowed him to conduct his defence, and has concentrated most of this time on the first (and original) set of charges against him, in connection with violations of international law in Kosovo in 1999. He has shown that he is not an especially capable lawyer, that he does not have the physical or intellectual capacity to do the work of a legal defence, and that he is not willing to withdraw in favor of a legal defence which might be capable. This might be because he plans to appeal his eventual conviction on the ground that he did not receive an adequate defence, it might be because he is using the trial as a regular television broadcast, or it might simply be because he is conducting his defence with the same monomaniacal ineptitude with which he committed the violations that led him to be charged in the first place. As the trial has dragged on and on, it has become less the revealing and cathartic event which was intended -- even the live broadcasts draw an audience only on those days when a colorful witness is called.

Now it looks like there is a possibility that the show might be cancelled. When it comes back into session on 29 November, the Tribunal will consider a proposal to retroactively separate the indictments against Milošević. This would mean that they could deliver a verdict on the Kosovo indictment and hear the defence on the Croatia and Bosnia-Hercegovina indictments sometime in the future, if at all. Leaving aside the procedural decisions which led the trial to this state, that sort of half-finish without resolution would offer one more example of why the job of establishing historical truth and of contributing to peace and reconciliation is not one that should be put in the hands of lawyers. The tendency is to offer process rather than substance.

29 comments:

Yakima_Gulag said...

I hate to say this, beacause in general I'm anti-death penalty, but then I'm talking about what the British used to call 'Ordinary Decent Criminals'
Milosevic is not an 'Ordinary Decent Criminal' He damn near caused WWIII, he definately made things worse in his immediate neighborhood, includeing for his OWN COUNTRY!
It's a pity no one simply shot him. It's a pity the fine Balkans tradition of defenistration did not get applied in his case. Better men and women than him have been defenistrated after all! He and his wife have wasted damn well enough of everyone's time. The man is a total waste of space. His wife and his kids are as well a total waste of space.

Today's Secret Klingon Word of the Day is: hdnzh which means 'knudge' a rather hard knudge...

András said...

I don't think the Ceasescu solution (put the unlovely couple before a firing squad) would've been preferable in this case. Whatever its shortcomings - and indeed they are many - the UN war crimes tribunal has succeeded in some things. One has been its ability to extract masses of documents relevant to the events of the 1990s from unwilling state bureaucracies and archives which, without such pressure, would likely have destroyed the documentation or kept it permanently out of sight. At least some of the victims and some of the perps and their enablers have been heard, under oath and subject to cross-examination (which is no guarantee of truth-telling, but is surely a tad more trustworthy than self-serving memoirs and media interviews). Matters have become part of the public record, a legacy that will not go away even after the ICTY closes down. These trials may never establish the full truth or achieve reconciliation (whatever one means by either), but at the very least they're amassing and making public crucial raw material that can help to forestall or undermine myths and which will ultimately enable historians to do what lawyers are admittedly ill-equipped to do. The track record of attempts to set up a TRC in the ex-YU successor states has been uninspiring thus far. I'm not so sure South Africa's experience can be replicated in the Balkans. There may be no perfect justice in this world, but I think even imperfect justice is better than none.

Eric Gordy said...

I'm definitely not in favor of murdering people either! And the TRC experience gets better play outside of South Africa than inside (the lawsuits by the Biko and Mxenge families challenging the right of the state to grant amnesty make for a good illustration). It is possible to imagine a lot of hybrids that seem appealing (a tribunal with a commission attached, like in Sierra Leone, or an international-domestic combined institution located in the region in which local lawyers also act as prosecutors and judges). But it is true that all of those possibilities assume a level of political will that probably does not exist.

Still, it is worth thinking for the future about ways for future efforts to overcome the most important flaws of ICTY, which I think are above all 1) that the geographic and organisational distance make the institution mostly incapable of influencing domestic understanding, and 2) a lawyer-heavy (apologies to my lawyer friends, what I have in mind is an excessive emphasis on formal procedure at the expense of substantive matters) and UN-ish separation of the institution from its clients. This is why I do not dismiss the domestic efforts to prosecute, however partial they are.

Dan Albihari said...
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Raoul Djukanovic said...

Apropos of nothing in particular other than that he popped up in the thread Dan refers to and the Chomsky / Guardian subject of his latest has reared its head again, here's the irrepressible Marko Attila Hoare's take on it all:

"In the realm of politics, there are those of us who wear our hearts on our sleeves: proud of what we stand for, we are not afraid to state our positions as clearly as possible, so there is no danger of misunderstanding; we call a spade a spade, and are ready to face the music. On the other hand, there are those who are embarrassed by their own position: they dissemble; muddying the waters so that what they really think is vague and hidden; when confronted by those who recognise them for what they are, they lash out in fear and shame, denying what everyone knows to be the truth...

Raoul Djukanovic said...

Oops. Wrong thread. On reflection I think it was the Diana Johnstone one. Never mind, here she is, banging her drum in today's Guardian, where she declares that U.S. military aggression is:

"a much greater threat to the world than Bosnian Serb nationalists, however brutal their behaviour in the mid-1990s. I believe that this is our primary political responsibility as citizens of the United States and of Britain.

It appears this closing argument, which would have a certain validity were it not to be tied to the first bit, equates to the right to play fast and loose with the historical record in the process of making it. Or something. My attempts to pin her down by email didn't get very far.

Anyway, read it and bleep.

Eric Gordy said...

Raoul, thanks for the pointer. Not really sure there is much to be said about it, except that she seems to be reproducing Chomsky's move by moving away from the positions she has taken and taking refuge in homilies about "free speech." A hearty "whatever" to that.

"Dan," nice to see you back again. But I'm afraid I don't quite understand whether your point is about the right of a defendant to refuse counsel, or maybe some other point. In any case, the bit about reconciliation, peace and clients are all in the resolution that authorised the founding of the ICTY. But you know that.

On with the vacation!

Yakima_Gulag said...

to the jolly flamer there, it's a statement of my opinion of the town I find myself in. A place of cold and exile. for some wierd reason a lot of very bad criminals tend to come here on release from prison, and it's not very safe right in town at night. That and the really moronic political leadership here are why I called the place Yakima Gulag, the other part was a long running tasteless prank that a friend of mine and I pulled on a lady in a chat room who thought Yakima was in Russia.
I was in a very bad mood at that time I wrote that because when I think about the Tribunal I really do get angry that Milosevic doesn't have to think of how he's going to keep warm this winter, he doesn't have to think about earning a liveing, and he does get to see his wife. Many of the people who survived the war he precipitated don't have those 'luxuries' He will never ever get what he deserves. it makes me pretty angry, and if you think I get a bit too angry about it, then talk to someone who had to be there when his thugs did their dirty work.
I don't see why there is a deadline for the Hague tribunal. There was not for Nuremburg. Guys who were involved with the whole NAZI thing get deported every so often at very advanced ages. So how come the guys who gave us this war get off so easy by comparison?
Milosevic really has been doing everything possible to try to have a mistrial, and the whole thing makes me sick. They should really make him accept counsel, and move this process along.
Makes me think of the line in 'The Bandit Queen' where Vikram tells the Bandit Queen 'If you kill just one man they will hang you kill a hundred and they will worship you as a godess.' Regular criminals do not get off that easy, includeing in other wars.
Yes the tribunal did get a lot of documentation out in the open of what happened, more work for the S.U.C. etc to spin it.
Yes the Tribunal did finally get rape looked at as a war crime instead of a perk for the thugs of whatever country invades another. Those are good things to have accomplished.
What has not been accomplished is sufficient punishment to really punish the culprits.
Without that there isn't going to be 'reconcilliation'.
If you think the way the Hague has gone makes me mad, then talk to someone who had to be there for the war, You know no one got personal with you in particular. So the very personal nature of your remarks is uncalled for.

Raoul Djukanovic said...

A hearty "whatever" to that.

No wait, it gets better. In response to my questions, I was asked what gives with such morbid fascination with these numbers and told that since I was so interested in how many Muslims were massacred, I could perhaps research how many Iraqis had been killed by the U.S. invasion and occupation, because that's a more neglected subject "and is going on right now, not ten years ago."

Which is of course why Diana Johnstone just wrote a series of pieces for Counterpunch and the Guardian on the subject of... Srebrenica, including this declaration in response to her critics:

"Some months ago, I was invited to join a group of writers forming a "Srebrenica research group". I declined, explaining that I had already said all I was capable of saying on the subject in my book Fools' Crusade."

The mind boggles some more, but not nearly as much as it does when you start discussing this with Chomsky, who, when challenged, seems sadly incapable of communication that isn't dripping with cryptic contempt.

Eric Gordy said...

Raoul, I don't know where you get the energy to keep these characters in sight. Aside from the content of it (and the bizarre assumptions--concern for one event precludes concern with another?) what really strikes me about the whole pseudoleft crew is that anything that they have to say about Bosnia or Iraq or any other place is simply fodder for intervention in the intramural games of UK and US post- and neo- Marxists who are still going back and forth as to whose background assumptions are the "purest" (Kautsky and Bernstein and Mouffe, oh my!). They have no genuine involvement with or concern about the people they are using as raw material.

This is not a big deal for people who are seriously engaged with these topics, since they mostly ignore the folks whose whole identity is built around a political posture. But it has a consequence in the sense that there are people with little knowledge and admirable motivations who have the misfortune of getting all of their information from people like Chomsky and Johnstone.

Raoul Djukanovic said...

I don't know where you get the energy

Good question. I guess the ulcer gurgles onward after all. Perhaps it's just my combative streak seeking a workout. Anyhow, it's all very revealing. Chomsky has just declared with regard to Srebenica that no one believes the number of the missing and the dead are the same. It's tempting to publish the whole exchange.

Dan Albihari said...
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Eric Gordy said...

Rory, you've got both my title and my purpose wrong. Represent a pure left? Not the job a researcher. Point out dubious currents that claim legitimation in the name of a self-declared left, certainly.

On the issues you are raising about the Milosevic trial, he certainly does have the right to represent himself, which has been affirmed by the Tribunal several times. I also think it is fairly clear that he has made the calculation (maybe correctly) that he is likely to be convicted regardless of what happens, and has therefore decided to use the trial for other purposes. This is certainly not the first time in history that a well known criminal has decided to do that, and it is one of the challenges that transitional justice processes often face. But it seems to me that you may be confusing the criticisms I have offered of the way ICTY conducts its business with a contention that it should not do its business at all. They are clearly not the same thing.

For the rest of your comments, Rory, they seem to be coming out of a vacuum, and I'd suggest that you may want to read up a bit on transitional justice. I can offer you some suggestions, and if you look not very hard you can even find a syllabus of mine online.

Dan Albihari said...
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Dan Albihari said...
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Eric Gordy said...

I'm not interested enough in Chomsky to pursue yet another exchange about him. His contribution to linguistics was very important, but as to what he has to say about the Balkans, there is just nothing to it.

But I am happy to explain what I mean about the lawyer business. Transitional justice has to do the job that all forms of criminal justice have to do, of course, but there are some other jobs as well, which include:

1. To establish a clear break with the past in terms of a symbolic soidifying of the rule of law

2. To produce reliable accounts of the recent past which form a basis both for the development of historical understanding and for the legitimacy of a new (hopefully democratic) order

3. To facilitate processes of "truth-telling" in a way that offers recognition and some forms of symbolic satisfaction to victims

4. To contribute to the elimination of conditions that make violations likely to recur

These factors are all political in character, although they depend on legal elements. And the standard for evaluating them has to rely at least in part on their consequences. The most important consequences have to do with impacts on the consciousness of a political community. This is why transitional justice efforts that contain an element of engagement with political communities are generally more successful. This is probably one of the reasons why the tribunals that have been established after ICTY and ICTR (for example, in Sierra Leone and East Timor) have done the following:

1. Located their activities in the places for which they have oversight

2. Involved domestic legal professionals as judges and prosecutors

3. Set up independent fact-finding commissions which produced results apart from their utility as part of a legal process

These are acts which recognise the complexity and sensitivity of the work of transitional justice, and which also proceed on the assumption that prosecution and punishment are not the whole job. So that is point one about lawyers: they reduce social processes to legal ones.

Point two about lawyers (the work of Gary Bass is very useful on this) is that there is a tendency to use legal processes to develop and advance legal theories at the expense of getting the job done. This is especially the case at ICTY where both the judicial panels and the prosecution and defence teams are heavily composed of law professors. A consequence of this is that it is often the case that the object of interest is not the society affected, and not either the defendants or their victims, but points of professional abstraction -- lawyers talking to each other rather than engaging concrete questions. They have the right to this and it contributes to the development of jurisprudence, but it does not contribute to improving the situation on the ground.

I realise I've gone on, but there is one point of Rory's that I would like to respond to, about domestic trials. The operating assumption seems to be that those trials will be illegitimate, either because of the capacity of the people involved or because of the character of the law. If those factual claims are not true, then of course there is no argument. But if the factual claims are true, this may be more of a reason to encourage domestic efforts, because they build domestic capacity, contribute to the establishment of the rule of law, and do more to create a record of transitional justice that would be likely to be perceived as legitimate than efforts that are imposed from outside. This is not to deny that there is a good deal of work that needs to be done to build institutional capacities in the countries that could try people domestically, but these capacities need to be built also for reasons that are not directly realted to transitional justice.

My apologies if I have gone on for a bit!

Dan Albihari said...
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Eric Gordy said...

I quite agree -- less dense theory, more empirical research! I'm especially interested in studies of places from which good analogies can be drawn to the Balkans (their long-term goal is a regional MA program in Balkan culture). So far I've got good stuff on India and the US Southwest, any other suggestions would be received with delight!

Dan Albihari said...
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Dan Albihari said...
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Steve Albert said...

Eric,

Thanks for the heads up on this.

Anyone but a lawyer would be cynical about the ability of lawyers to find historical truth or promote peace and reconciliation. Its seems to me ,however, that the primary responsibility of the courts is to determine guilt or innocence and to hold criminals accountable for their acts.

The ICTY was set up by the IC with the express purpose of bringing the perpetrators of war crimes in the Balkans to justice. This long before the offenses contained in the Milosevic/Kosovo indictment even occurred.

One wonders how future historians will judge the Tribunal, if no verdict is rendered in the Bosnia/Croatia cases,and if Karadzic and Mladic never appear in a dock at the Hague.

Having come this far in trying Milosevic, the court cannot fulfill its mandate if no verdict is reached in the Bosnia and Croatia cases. I hope that other persons concerned with human rights and the future of the Balkans will insist that this trial,flawed as it may have been, is carried to its conclusion.

Steve

Eric Gordy said...

Yes, I also think that it would undermine the whole process not to complete the trial. Whatever arguments could be made about how well or badly it has been conducted so far, the prosecution has presented its evidence, the defence has been given the opportunity to present its evidence, and it is not impossible to get to a verdict, possibly with some provision to give the defence additional time.

Dan Albihari said...
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Eric Gordy said...

This is a bit of an indirect reply, but have you considered that the question may work the other way around? That is, not that politics are intervening in a legal process, but that law is intervening in a political process?

What I mean by this is that legal responses might be efficient, but there is something deeply unsatisfying about them -- whether somebody like Milosevic ends up in prison is of mostly symbolic importance, but whether the society is in a condition to confront its past and take up the burden of creating conditions which reduce the likelihood of violence is a question that affects people's lives directly. Legal efforts can help this process along or set it back, depending on how well they are carried out and how legitimate they are perceived as being, but the process cannot be reduced to just the legal efforts.

Dan Albihari said...
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Eric Gordy said...

Okay, it's going to take me a little time to reply (end of semester, pile of papers to grade). Meantime, you folks sitting in the back?

Eric Gordy said...

The contributions of one of the participants in this exchange have been deleted, at that person's request.