Struggling to uphold human dignity: bas-relief on the wall of the tribunal in The Hague. Flickr / keeps. Some rights reserved.
After 12 years in prison, one of the most notorious radical nationalists in Serbia, Vojislav Šešelj, returned from Scheveningen in November under somewhat mysterious circumstances. Neither acquitted nor sentenced, he was released due to his medical condition, pending the judgment of the Trial Chamber of the International Criminal Tribunal on former Yugoslavia (ICTY).
Straight from the prison, the leader of the Serbian Radical Party went to its premises in Belgrade and addressed his supporters: “Brother Serbs and sister Serbs! They threw me out of Scheveningen prison. I didn't ask for it—they just wanted to get rid of me. I promised you that I will destroy the Hague tribunal. The battle took a little bit longer than I expected, but I won!”
His words were cheered, as if the troubled history of the ICTY had come to a close with the accused celebrating victory over the discredited institution. Not everyone would agree but for most Serbs Šešelj's release confirmed an already persistent belief that the ICTY was a mockery of justice, a political court determined on putting Serbs on trial with hardly any evidence.
From the very beginning, the ICTY was accompanied by failure: only two years after it was established in May 1993, hopes of a deterrent effect were dashed when the most gruesome crimes in Bosnia were committed. Serial disappointments followed: inability to capture accused figures, to conclude proceedings in a timely manner and to counter nationalist attacks sustained negative perceptions of the tribunal.
It failed to conclude effectively some of the most prominent cases—from Slobodan Milošević (former president of Serbia), to Jovica Stanišić (former head of the state security service) to Vojislav Šešelj. Additionally, dramatic reversals in the Appeals Chamber, as in the cases of Ante Gotovina (a former lieutenant general in Croatia) and Momčilo Perišić (former chief of the general staff of the Yugoslav army), pummelled the institution’s already low standing.
Serbia has been the site of strongest anti-Hague sentiment, bitterly resisting political co-operation and justice from that quarter. The tribunal is presented in Serbia as the judicial arm of NATO, delegitimised as a victor’s court and demonised as offering ‘justice’ only for military enemies of Serbia.
With hardly any political support and strong resistance from various social actors—from legal professionals and academics to politicians and media—this consensus against the institution, its ‘unreasonable’ indictments and its ‘unjust’ trials has grown year by year, from the extradition of Milošević to the arrests of the Bosnian Serb political and military leaders, Radovan Karadžic and Ratko Mladić respectively. The ICTY was presented as a “court of inquisition”, its sole goal to judge Serbian ‘patriots’—accusing Serbs, as one journalist put it, “only because they are Serbs”. The long-time ICTY chief prosecutor, Carla del Ponte, counted for years as one of the most hated persons in Serbia.
Neither the trials of other nationals nor indeed their victims were presented in the media. Instead, press articles were filled with denials of atrocities and the minimisation of crimes, refusing any responsibility on the part of Serb forces and constantly evoking Serbian victimhood.
Hopes that domestic legal procedures could overcome these obstacles and provide less controversial justice did not long survive. Legal proceedings in front of the specialised War Crimes Chamber of the Belgrade District Court and a war crime prosecutor’s office, established in 2003, quickly showed that diffident political support and moderate acceptance were not enough to change attitudes towards war-crime trials.
The first cases provided initial encouragement, enabling formulation of a different ‘patriotic’ discourse about war-crime trials in Serbia, articulated by those involved in the legal process and their few political allies. If reticently, they introduced to public speech individual victims of other nations, the tragic story of the 1995 Srebrenica genocide in Bosnia and the moral foundations of dealing with past crimes.
This moderate patriotism was limited by some of the topoi it shared with nationalist discourse: representation of the ‘Serbian people’ as the ultimate victims, the presentation of Bosnia as a ‘civil war’ and the suggestion that ‘all sides’ bore equal responsibility. And so prosecution was never extended beyond direct perpetrators towards higher ranking officers, whose arraignment remained unimaginable.
Serbia has been the site of strongest anti-Hague sentiment, bitterly resisting political co-operation and justice from that quarter.
Nevertheless, these domestic vehicles did have slightly more political support than the Hague trials: besides human-rights NGOs, they were supported by the Democratic Party and generally in 2008-12 radical-nationalist rhetoric was replaced by moderate, accommodating language. This was a time when the public could hear from the highest institutions about crimes committed by Serbian forces, when victims were individually named and even some moral responsibility was acknowledged.
The media, like the institutions, responded to this change in their public presentation of crimes but didn’t dare cross boundaries set by the political elite. For example, the mainstream media did not bother following the story which led from the uncovering of mass graves of ethnic Albanians in Batajnica, near Belgrade, to its judicial conclusion years later in convictions of Serbian police officers in the Suva Reka trial. Neither did they search out survivors or victims’ relatives to describe the 1999 crime, in which grenades were thrown into a locked pizzeria in the southern Kosovo town, leaving 50 dead. And they failed to connect this trial with proceedings in the ICTY, which might have shed more light on the command chain in the Kosovo case.
A combination of media uninterest, lack of investigative journalism and the notion that Serbia had already undergone a catharsis additionally obscured war-crime trials from the public. Only in some media (notably the daily Danas, Vreme and several online portals, like E-novine and Pescanik) have journalists tried to provide trials with context, give voice to the victims and query the wider responsibility of broader social milieux. Otherwise, war-crime trials are covered only marginally, with short, impersonal and unemotional language, which allows complete dissociation from the victims.
The media continue to divide trials according to ‘us’ and ‘them’. If Serbs are on trial, they are careful to frame the whole case from the accused perspective, providing the public with rationalisations, blatant lies or conspiracy theories to mitigate charges. In the few legal cases where Serbs are victims, by contrast, the media are quick to provide emotional depictions of crimes, to investigate and to demand justice. Such cases are presented through the victims’ eyes, dominated by their needs, stimulating strong identification and moral condemnation.
Croatia and Bosnia
Serbia is however not alone in this regard. Other Yugoslav successor states have seen a similar incorporation of trials into the nationalist narratives which emerged during the wars, so that a reassuringly stable national identity, rather than troubling self-reflection, dominates the post-conflict societies.
Mainstream Croatian media have engaged in the glorification of battles, with stories of Croatian heroes and brave defenders, rejecting claims of crimes by Croatian forces as impossible and offensive. Questioning of the ICTY prosecution for not charging Milošević for the war of aggression and genocide was matched by strong condemnation of those who addressed the responsibilities of Croatian officers.
The acquittal of Gotovina by the Appeals Chamber, after he had been sentenced to 24 years, reassured anyone who might have doubts about crimes committed in Operation Storm—when Serbs were driven out of the Krajina in Croatia—by confirming the nationalist narrative of a defensive war. As in Serbia, despite the years of rejection and anger over the ICTY trials, journalists now tend to believe they have faced any crimes committed by Croat forces, not only in the recent war but also in the second world war.
Building strongly on victims’ stories, mainly supported by ICTY charges and judgments, Bosnia transformed war-crime trials directly into the nationalist narrative—departing only when the ICTY accused ‘Bosniaks’ (Bosnian Muslims) themselves. In the latter cases, the frequency of acquittals confirmed the general impression that Bosniaks were not guilty of war crimes, while the number of genocide verdicts against Republika Srpska officers confirmed Bosniak victimisation, particularly vis-à-vis the brutal executions of civilians in eastern Bosnia.
The ICTY also created a hierarchy among victims by privileging those at Srebrenica, adding to competing victimhood narratives within Bosnia and inspiring other groups to request recognition of genocide elsewhere from 1992. In the media, war-crime trials are presented through the victims’ frame: articles are often written by the survivors and denials by the accused are directly confronted with survivors’ memories. Trial testimonies are included at length in the articles, with individual, emotional and detailed depictions.
With such strong discrepancies in interpretation, the region presents a picture of divided histories, with ICTY trials instrumentalised for self-victimisation and to confirm prior nationalist narratives against ICTY claims. In none of the three new states have the charges or verdicts been used for critical evaluation of responsibility towards victims.
One of the eminent researchers of Holocaust memory in Germany recently observed how rare, globally, self-reflective memory can be—and how national memory easily slips back into self-congratulatory narratives, even vis-à-vis the Holocaust. War-crime trials in former Yugoslavia have hardly had a chance to provoke debate. Instead they have produced revolt, bitterness and new grievances—adding further to the nationalist repertoire to be used in peacetime.
Public hatred and threats to life have been visited on those who have dared support war-crime trials and confront dominant nationalisms. Victims of other ethnicities rarely enter the public sphere: as Serbian victims were wiped out from the victorious memory in Croatia, so is that of Bosniak or Croat victims absent from public discourse in Serbia. Even the dominant victims’ narrative in Bosnia has not succeeded in creating more space for the victims of other groups.
Self-reflective memory is elusive, not easily achieved even in stable democracies with effective rule of law. That war-crime trials failed to trigger reflective memory in post-conflict societies might surprise only those unaware of the ease with which even model democracies manage to avoid it.
 ‘Amfilohije Radović’, Vreme, 29 March 2001.
 ‘Srbi krivi što su Srbi’, Večernji novosti, 7 April 2008.
 Ines Sabalic, ‘Smrt Haškog suda’, Globus, 18 November 2014.
 W. Kansteiner, presentation at the fourth annual conference of the Dialogues on Historical Justice and Memory Network, Lund, 6 December 2014.