Guilt, Responsibility, and Denial. Eric Gordy

conducted in Serbia, Croatia, and Bosnia-Herzegovina, principally against members of minority groups charged with committing offenses against members of the majority population.¹⁶ For the most part these trials were of a piece with the war itself. In Serbia, a few trials for war crimes committed by Serb paramilitary forces did take place—for example, the prosecution of the Vučković brothers that began in Šabac in 1994. Vojin Vučković was convicted of illegal possession of weapons and Dušan Vučković for firing on a group of Bosnian civilians, murdering twenty of them and injuring sixteen.¹⁷ This was, however, a “substitute” prosecution—members of a paramilitary formation were charged, but there was no inquiry into the state sources of their command and supply. In many such cases prosecutions were filed but the trials were not carried to conclusion. In the Vučković brothers case, the principal suspect, Dušan Vučković, had been dismissed from the army in 1982 with a diagnosis of alcoholism and severe psychological illness, meaning that (1) a rhetorical wall was constructed between the military and the crimes, and (2) a ground was established not only to contest a prison sentence, but for any observer to trace the crimes to an individual condition rather than a political setting. Vučković was in fact charged with only a small portion of the offenses to which he had confessed, and the role of the Serbian Radical Party (Srpska Radikalna Stranka, SRS), which organized his paramilitary formation, was never raised.¹⁸

      Acting on evidence of both violations of international law and failure of legal bodies, the UN Security Council adopted a series of resolutions (721, 752, and 764) in 1991 and 1992, declaring the conduct of the wars to be a matter of international concern. In Resolution 771 (1992) the Security Council enumerated violations of international humanitarian law and demanded that all sides cease committing them. The 1992 London conference on Yugoslavia adopted an instruction to governments and international organizations to inform the UN about the observance of Resolution 771, and this instruction was formalized in Resolution 780 (1992), which established a commission of experts to report on violations. On the basis of the commission’s report of February 1993, the Security Council adopted Resolution 808 (1993), which called for the establishment of an international court and called on the secretary general to prepare the court’s statute. The secretary general’s response was adopted in Resolution 827 (1993) as the ICTY statute.

      This series of events indicates that at least one major factor that led to the establishment of ICTY, the first international criminal tribunal to be set up by the UN, and hence the first concrete assertion of the right of international governance in humanitarian matters, was the failure of domestic courts in the former SFRJ to do their job. Mark Ellis argues:

      Although the Tribunal has primacy over national courts, which defer to its competence, it still has recognized the right of national courts to conduct war-crimes trials. In creating the Tribunal, the United Nations made clear that its intention was to encourage states to prosecute war criminals. It was not interested in depriving national courts of their jurisdiction over these types of crimes. However, so long as national judicial systems are viewed as partial, ineffective, and incapable of diligently undertaking prosecutions, the Tribunal will rightfully retain its primacy over those selected criminal proceedings that are taking place in the national courts.¹⁹

      More simply, a prominent ICTY defense attorney, Michail Wladimiroff, who defended Dušan Tadić in the first ICTY trial,²⁰ remarked that “if the states of the former Yugoslavia would properly prosecute their own perpetrators of war crimes and crimes against humanity and do so with the same quality of fair trial, there would be no need for the International Tribunal for the Former Yugoslavia.”²¹

      However much the inactivity of domestic courts may have provoked the formation of ICTY, it was not designed simply to substitute for domestic courts. ICTY began to define its unique role beginning in 1998. At that time, after a series of trials of low-ranking figures like Dušan Tadić and Dražen Erdemović, ICTY adopted a policy of restricting its focus to major perpetrators. In 2000 and 2001 this became apparent (and possible) with the arraignments of some formerly senior political actors: Momčilo Krajišnik,²² Biljana Plavšić,²³ and of course Slobodan Milošević. In relation to Croatia, it filed its major indictments against generals (the two politicians most likely to be charged, Franjo Tudjman and Gojko Šušak, died in the meantime, as did Bosnian HDZ leader Mate Boban). Here the model adopted was not to substitute for domestic jurisprudence, but rather to engineer widely publicized demonstration trials, along the lines of the International Military Tribunal in Nuremberg. At the same time, although the ICTY statute foresaw “primacy” over national courts, ICTY rarely exercised this primacy in individual cases. This led to considerable leeway, as well as considerable potential for abuse, on the part of courts in Croatia and Kosovo.²⁴ In some instances referral of cases took on a political character, as it seemed that Croatia was rewarded for cooperation with the promise that cases like the Gospić case, involving violations committed by Croatian forces, would be referred to domestic jurisdiction.²⁵

      In the period since the regimes whose behavior sparked the establishment of ICTY left power, the states of the former Yugoslavia have been the site of several innovations and experiments in transitional justice. Aside from the founding of the first UN tribunal, the region has seen the first regional system of special prosecutors and special courts for violations of international humanitarian law, the first invocation of “confronting the past” as a principle of conditionality, and the first efforts in the civil sector to develop cooperative approaches to reconciliation.

      Since the successor states to the former Yugoslavia are nonrevolutionary states, some expectations placed on transitional justice conflicted with one another. States were expected to transform institutions that had been complicit in deeds that were now to be punished, but not to destroy them to the degree that they could not function or integrate with international organizations.²⁶ Taking the difficulties faced by the states into account, the fact that transitional justice initiatives have produced a mixed record might be less noteworthy than that they have occurred on a meaningful scale at all.

      There were always compelling reasons for preferring domestic over international trials. Controversies around issues of sovereignty and perceptions of bias have led to the development of a political current that rejects ICTY, while the distance of the court’s seat in The Hague from the publics in the region has contributed to difficulties in communication. At the same time, the challenge of prosecuting such cases successfully has been understood by many in the domestic legal profession as an opportunity for prosecutors and courts to demonstrate their capacity to operate independently and contribute to a resolution of humanitarian law issues from within the country rather than without. In addition to their importance in developing local institutional capacity, several recent domestic cases have also contributed to the development of cooperative relationships between judicial and law enforcement institutions across borders, particularly between Serbia and Croatia.

      When ICTY completes the trials currently before it the issue of international versus domestic prosecution will be moot: all prosecutions will be domestic.²⁷ In terms of political efficacy, local courts enjoy greater grounds for legitimacy than ad hoc tribunals, and their work is less likely to be perceived as an imposition from outside. In terms of gathering evidence and receiving accusations, too, there may be advantages of geographic proximity to victims, perpetrators, and crime scenes (these could be disadvantages in cases where witnesses might be intimidated). Since many of the most important suspects are people who played roles in domestic politics, too, domestic courts offer the possibility of trying them for both domestic and international offenses. Finally, if there is to be anything like a comprehensive approach to war crimes, a major role for national courts is inescapable simply because ICTY never had the intent or capacity to investigate and try anywhere near the number of people who could potentially be charged, nor did it ever have authority to try people for crimes not delineated in its statute.

      Serbian courts entered the post-2000 period burdened with considerable difficulties. First among these was their poor reputation. The independence of the courts from political agencies was questionable in the Communist period, and worsened rather than improved during the period of nationalist authoritarianism. Both judicial personnel and judicial processes were subject to political instrumentalization. The Milošević regime frequently produced judicial decisions as political