Volume 11 Number 3

Summer 2002

Special Reports

Milosevic between Crime and Punishment
Tatiana Vaksberg

On February 12, 2002, two guards escorted Slobodan Milosevic to the dock at The Hague Tribunal. A number of Serb television stations offered live broadcasts of the opening of this unique trial in which, for the first time, a former head of state was brought before an international court. The trial began a year after Yugoslavia decided to prosecute its former president for crimes with little direct bearing on its own originally sinister policies; thus the Prosecutor's Office in Belgrade charged Milosevic with abuse of power and corruption. The Hague Tribunal, in contrast, is trying him for genocide, war crimes, and crimes against humanity, committed in Bosnia, Croatia, and Kosovo.

The strikingly different criteria for indictment by which Belgrade and The Hague have evaluated Milosevic's actions might give rise to some suspicions about the determination of Yugoslavia to rid itself of its disastrous heritage. In truth, the contrast here is mostly formal, mostly circumstantial. (Without the cooperation of the Yugoslav authorities, the former president would never have appeared before the International Tribunal.) But nothing is straightforward in this case, and stipulations and qualifications like these accompany every attempt to summarize the nature of this unique trial and the political and social phenomena forming its background. There can be little doubt that the trial, which has begun in The Hague, is much more than the mere sum and working out of legal norms, applied by a certain court in accordance with a strict procedure.

In the pages that follow my only wish is to give some flavor of what I experienced and some insight into Milosevic's strategy of self-defense-which seems to be the logical continuation of the same way of being and thinking that brought him to The Hague in the first place. There are, as well, some historical analogies for his behavior and rhetoric that are remarkably pertinent.

I left for The Hague apprehensive, in part, because of what I took to be my insufficient knowledge and background. I had spent many years investigating the ethnic purges of the Turkish minority in communist Bulgaria-a small-scale model for the deeds that were to emerge fully developed in Kosovo a decade later. In the past, I had followed Milosevic's wars on Radio Free Europe/Radio Liberty and, more recently, had studied the tribunal's procedures. I knew the nationalistic trance in which the Balkans held themselves, as well as the tacit reluctance of their courts to pass judgment on crimes committed against minorities. Yet, despite my twelve years of experience as a journalist, I felt rather awkward in the courtroom. But by the time I made a return trip to Sofia I had recovered a sense of balance: all the colleagues with whom I had talked in the corridors of the tribunal confessed to me they, too, had shared that same uncertainty.

That prompted me to make an unusual inquiry-what were the journalists like who were assigned to cover the beginning of this historic trial? Their variety surprised me as much as anything else: they worked in every kind of journalistic genre and had all sorts of interests-some were lawyers or legal reporters; specialists in international relations or ethnic crises; and the journalists proper typically covered NATO, the UN, or the EU. The variety was a welcome, since the Milosevic trial has so many aspects that no one area of competence could comprehend it. It poses dozens of crucial questions beyond the usual one of culpability-questions about the place of extraordinary tribunals in international law; about possible limits on the sovereignty of dictatorships; and more philosophical ones, too: on the use of history in modern politics; the functions of a society in times of military conflicts; on the adequacy of supranational institutions in preventing or solving crises; and so forth. Such questions and their like go well beyond what can be resolved by the tribunal's jurisprudence. But from the point of view of, say, history and sociology, another overriding question remains: How did the milieu that gave birth to Milosevic come into being? And can we have any hope of its ever changing, after his trial?

While all such topics are not the immediate subject of the current case, they lurk behind almost every word uttered in court. Indeed, such questions were there long before the trial started, and taken as a whole, they are the rubric under which we must seek to understand all of The Hague proceedings. Fundamentally, there appears to be-within the courtroom-a clash of cultures so deep and so cunning that it seems always to be one step ahead of our every effort to grasp it. Once must wonder, given this divide, if there is any common ground where prosecution and defense can meet long enough to understand and thus oppose each other rationally. Not surprisingly, at the heart of the problem lies our protean capacity for linguistic ambiguity.

Milosevic and the other language
This trial and the clash of ideas it embodies can be most easily discerned through the language used by the two parties. The indictment, on one hand, and Milosevic's speeches, on the other, are exceptional manifestations of polysemy. Both the defense and the prosecution speak of the same events as if they were entirely different events: what, according to the prosecution is an attack on civilians, is, according to Milosevic, a "defense against terrorists." The crime of genocide turns into "Serb defense," nationalism into "national interest." The international community becomes "a gang of nazis," and the trial itself "a lynch mob." The prosecution is playing by rules that Milosevic treats as themselves a crime or as the work of criminals. The one trial is actually two different events.

Thus, the prosecution speaks the language of universal values, while Milosevic speaks the language of his own ideology. It is an ideology that, over the last 12 years, changed or distorted the meaning of some basic notions and obscured reality, leaving language itself to become the carrier of a destructive power. According to Carla del Ponte, the Serbs "have every right to consider themselves the victims of Milosevic" as "their fears were nourished, multiplied, and manipulated in order to serve Milosevic's felonious plans." The prosecutor went no further, but we can add the following: that it was the language of the ruling ideology that brought about the need for mobilization and defense, that it was more a cause than an effect. This rhetoric, in its specifics, will be the theme of at least one court session-the accused intends to call, as his defense witnesses, historians and intellectuals who made good use of the rhetoric and propagated it. It is Milosevic's belief, to be sure, that they will deny the charge of having been manipulated by the former president. It is still not known whether these witnesses will be allowed in court, but, more to the point, Milosevic's appeal for such testimony-instead of dealing with the question of his personal guilt and responsibility, the ostensible purpose of the trial, say, from a Western point of view-puts an entirely different questions before the court. At issue, from this perspective is the totality of mechanisms and of people with whose aid Serbia marched unbidden into a militant ideology, based on an irrational fear of the other.

The very conduct of the accused compels us to discuss these questions, at first glance peripheral to the trial, for they will have a great influence over postwar Serbia. The first question raised by Milosevic and his rhetorical strategy was the equal sign that he put between the Serbs and himself. For three full days he went on and on, speaking in the name of the Serbian people and on their behalf, as if he were still representing them.

Milosevic and the notion of guilt
"Accusing me, you are accusing my people," Milosevic said at the beginning of his inaugural speech in The Hague. These words marked the beginning of the great debate on guilt-in its philosophical rather than its legal aspect. From a legal point of view, "collective guilt" does not exist. Guilt can only be personal, individual. This rule holds true for The Hague Tribunal, too. Its statute reads that the tribunal tries only natural persons. So, not only is the tribunal unable to charge the Serbian people as a whole, but it does not have the right even to consider such a hypothesis.

Prosecutor Carla del Ponte made the point, at the very start of the trial, that she is accusing Milosevic as a natural person: "No state or organization is on trial here today: the indictments do not accuse an entire people of being collectively guilty of the crimes, even the crime of genocide. It may be tempting to generalize when dealing with the conduct of leaders at the highest level, but that is an error that must be avoided." Del Ponte must work within a legal framework where a society is necessarily depicted as the victim of a single dictator: "I do, of course, intend to explore the degree to which the power and influence of the accused extended over others. . . ."

Still, there is no way of avoiding the absolute fact that the person today accused never took the presidential post by force. Just the opposite: he was freely elected. More than 60 percent of Serbs voted for Milosevic before and during the two wars he waged. There is no expert today who can say whether Milosevic was elected despite his policy or in order to carry it out. Indeed, the accused is proceeding on an assumption quite contrary to that of his accusers and of the law under which he is accused. From Milosevic's point of view, society looks (or is made to look) like the informal coauthor of his policies: "You claim," Milosevic said, "that I had some magical influence over the people and manipulated them, whereas I was only their mouthpiece. Accusing me, you accuse the Serb Academy of Sciences and the two million people who listened to me at Kosovo Polje; you accuse the elite of our intelligentsia and all the Serbs in general."

If there is no collective guilt, then Milosevic, as an individual, may well be found guilty. Probably he will be. But if collective guilt may be said to exist, then so too collective innocence may be said to exist. And if that is the case, and if the Serbian people as a whole are considered innocent, then Slobodan Milosevic, as their spokesman and instrument, may be so considered as well. The accused's strategy seems, in part, to be that if he implicates the Serbian people, he implicitly exonerates himself. Inconveniently for him, of course, he proceeds on a logical basis at variance with that of the court. Milosevic is a lawyer by education, so he cannot help knowing that his trial, any trial, performs a function different from the one he has in mind, and that it will be the task of the proceedings to personify the culpability for his devastating policies in the person uniquely responsible-to distinguish the individual guilt from the collective and the anonymous.

Milosevic does not seem to consider the proceedings of The Hague Tribunal a real trial. He has treated it as a pulpit from which to go on developing his cause. It is a strategy that was used by Russian Bolsheviks in the courts of czarist Russia and is still exploited today, in the democratic world, when courts summon terrorists or their followers. From this point of view, Milosevic's conduct is scarcely unique. What was unique was the encounter (or, rather, failed encounter), during the first few days of the trial, of two worlds drastically at odds that are supposed to have a common origin-in European culture.

What we hear behind Milosevic's speech
I happened to be an unintentional participant in that failed encounter, even as a bystander. When I first compared my reports with those of my colleagues it turned out we all had the same sense of things as far as the atmosphere in the courtroom, the trial procedures, and the facts of the indictment were concerned. But as soon as Milosevic began speaking and we started writing about him, everything changed. The Western journalists had highlighted the fact that the accused described NATO as a Nazi organization, while I had totally ignored this in my coverage. What my reports said was that the accused, in fact, had acknowledged the trial, albeit indirectly, and he started speaking to the point, although he remained entirely within the framework of his own ideology. With all the Balkan and communist history in my head, there was nothing more natural or, indeed, more trite, than Milosevic's declaring the West Nazi-and doing it in the same light way in which he can turn the meaning of many other notions and values. There was nothing less amazing than that Milosevic, having denied the legitimacy of the tribunal, should then start to play according to its rules.

In the end, we all turned out to be mistaken. Both takes on the situation were only different reflections of the one role Milosevic played easily, and what is more, he was easily recognized as playing it by a number of his fellow countrymen. And that was the role of the once-famous communist Georgi Dimitrov, tried by the Nazi court in Leipzig in 1933.

Milosevic and Dimitrov
On coming to power in Germany, the Nazis promptly set fire to the Reichstag and accused three Bulgarian communists of arson. One of them-Georgi Dimitrov-became famous. According to the history textbooks of the former communist countries, during his trial he gave a fiery speech that turned him from a defendant into a virtual prosecutor, using the platform of the Nazi court to popularize his communist cause. According to these same textbooks, the Leipzig trial provided the initial impetus for the European antifascist movement whose hero and symbol Dimitrov became. A year later, after he received a not-guilty verdict, Dimitrov became head of the Communist International in Moscow, performing some far less noble deeds. Only at the end of last century did people learn about his grim role in Stalin's purges. That Dimitrov played such a role is still hard for many in Eastern Europe to accept, where, for years and years, Moscow would spread reverence for the communist antifascist hero who had dared stand up against the Nazi court.

For Yugoslavia, which could boast of having one of the strongest antifascist movements during World War Two, Dimitrov is the ultimate hero and not just because of his conduct in Leipzig. Later, in the years following the war, he was sent to discuss with Tito (behind Stalin's back) the establishment of a Balkan Federation with Bulgaria as one of the member countries. With these two roles Dimitrov earned considerable space in the history textbooks of Tito's time.

I do not know if Yugoslav schoolchildren-just like Bulgarian ones-were made memorize Dimitrov's speech at the Leipzig trial by heart, but Milosevic knew it, for sure. His third sentence at the Hague Tribunal went something like this: "Accusing me you are accusing my people." Dimitrov, much earlier, had argued before the court, "Accusing me you are accusing my people of being wild and barbarian."

This is no mere mechanical comparison. Milosevic's entire conduct, in the early days of the trial, was an exact quotation of the Leipzig trial, undoubtedly recognized by most of his compatriots by virtue of the shared cultural heritage. Long before Milosevic declared The Hague Tribunal to be established by so-called Nazis, many Serbs must have surmised the message, and developed it, as if in anticipation of the logic of the forthcoming speech. While the whole world was anxiously waiting for Milosevic to take the floor in front of a court whose legitimacy he did not acknowledge (will he speak? will he call witnesses?), the accused was contriving messages that would create a parallel between the "antifascist hero" (Dimitrov) and the "victim of the Nazis" (Milosevic). This analogy, arising as much from his conduct as from his words, when put into a context created by many decades' propaganda, is much more important than the simple twist of values and definitions Milosevic used.

The accused has no lawyer. Milosevic refused to have one, a decision made in light of his own declaration that he did not recognize the tribunal. Yet, he has a circle of law advisers. Apart from two Serbs-Dragoljub Ognjanovic and Zdenko Tomanovic-there is the French trial lawyer Jacques Verges, famous for defending Nazi Klaus Barbie and Carlos the Jackal. In terms of law, rejecting the services of a lawyer means the accused does not have the right to meet with his advisers unobserved, while they, on the other hand, do not have the right to receive the trial files. Milosevic created this situation himself and then referred to it as if it had been created by someone else. His followers, in turn, riled up the human-rights community, asserting that a former head of state remained in custody, deprived of his rights and in the grip of an illegitimate institution-that he was being forced to take up his own defense against the worst charges, provided in criminal law. It was Dimitrov all over again; indeed, three months before the trial, Verges told the French magazine Diplomatie Judiciaire that The Hague trial was strongly reminiscent of a "trial in Leipzig," in 1933-"the same fabricated charges."

Playing the victim has been Milosevic's major weapon not only since his arrest but from the time he first came to power. For over a decade, state propaganda has created an image of the Serb people as the centuries-old victim of its neighbors and then identified Milosevic with the struggle for historical justice.

Interweaving history with the present
With regard to the Serbs, the historical connotations of the word "Nazism," as well as for "anti-Nazism" in the context of the Milosevic trial, need some additional clarifications. During World War Two, Yugoslavia might have had one of the strongest resistance movements, but who did it fight against, after all? Apart from the German and the Italian armies, Yugoslavia was at war with the Croatian Ustasi and Kosovo fascist troops. This historical fact, viewed from the outside, may look like an academic subject frozen in time and having nothing to do with the trial in The Hague. But in the context of the Balkans, no historical fact is simply or merely a source or item of knowledge. The past in the Balkans is continuously relived as if it were tangibly present. The fact that Milosevic's wars were waged against Croats and Muslims, the (former) allies of Hitler or Mussolini, fits conveniently into long-standing Serb propaganda that Yugoslavia was in pursuit of legitimate, retroactive historical justice. And that is just from World War Two on. Why speak, then, about the much more substantial burden in need of recompense that, in Serbia, they blame on the five-centuries-long Muslim domination, most often identified as beginning with the Battle of Kosovo Polje in 1389. That battle found its later ideological parallel in the war for Kosovo in 1999.

Milosevic operates skillfully in the narrower and darker regions of the wider cultural context, maneuvering among the discrepancies he ignores. He produced for the court his 1989 speech, made in Kosovo Polje, and asked if it could find a single nationalistic word. The answer to that is absolutely indisputable: no, there certainly is no such word. But there was a context in Kosovo Polje in 1989-a Serb leader went to a region, populated with Muslims, that had just lost its legal autonomy and observed the anniversary of the massacre of the Serb army, carried out hundreds of years earlier by Muslims. In his speech he called for justice and equality. It is this context that turned innocent-sounding words into a militant nationalist appeal for vengeance for five centuries of oppression.

At the end of his initial speech in The Hague, Milosevic made a short historical excursus. He attacked the prosecutor's argument, according to which he, Milosevic, had started and waged his bloody wars in order to establish Greater Serbia. "You are totally ignorant," Milosevic said in English; "the idea of the establishment of a Greater Serbia is not the wish of the Serbs, but a fear on the part of the Great Powers (from the first half of last century). . . . Today, once again, you accuse me and my people of crimes you, yourselves, have committed." This was the only paragraph in his three-day speech where, publicly, Milosevic linked the past and the present symbiotically. For the rest, he relied on hints and implicit suggestions.

Milosevic's talent for drawing out such analogies, for suggesting them without ever having citing concrete historical archetypes, has its source in his exceptional ideological acumen. It was by virtue of this unhappy talent that he succeeded, within twelve years, in binding together into a perverse body the facts of the past with a present if fabricated reality.

Others have written about this trial more directly and specifically than I have here. I wished, rather, to write not so much about the trial as about the context in which to view it. For things Balkan, context is all. It must be enough, now, to ask what a future Serbia might look like after the verdict, whatever that is. And to ask, Will these proceedings and their outcome solve more than just the immediate and concrete legal issue before the tribunal? Without overtly intending to do so, the trial has confronted its Balkan audience with a quest for justice quite at odds with its own mythopoeic longing for justification, confronting it with a different set of scales, one in which humanistic or merely humane values are weighed against a cruel, nationalistic ideology. The audience is being invited to choose between propaganda and facts, between the irrational and the likely, the probable, the demonstrable.

No matter what the trial's outcome, it will certainly establish a norm for the evaluation of one of the darkest periods of the twentieth century. Put otherwise, it will lay the foundations for an entirely new history textbook. It is a book needed not only by Serbia but by the Balkans as a whole.

Tatiana Vaksberg, an analyst in the Bulgarian section of Radio Free Europe, has received, on three occasions, Bulgaria's highest journalism award.

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