advocated by the group of Croatian athletes discussed above. This perversely fortuitous circumstance, combined with the passage of time and the widespread diffusion of evidence of violations, has meant that the position that there is no guilt to be assigned is held by a vocal but diminishing minority.
An early challenge to the consensus of denial came with the broadcast of the BBC-produced documentary A Cry from the Grave, about the 1995 massacre in Srebrenica. The film had been shown a few times in private showings to small audiences in Belgrade, and in 2001 was broadcast on the independent B92 television station (launched to supplement the radio station in October 2000), to controversial reception.6 In July 2001, three months after Milošević was delivered to The Hague, the documentary was broadcast on the state RTS television network, to a considerably larger audience. An exchange in the Serbian parliament followed the broadcast, with Branislav Ivković, a leader of Milošević’s Socialist Party of Serbia (SPS), accusing B92 and RTS of selectively ignoring crimes, and of broadcasting exclusively “propaganda” aimed at “establishing a feeling of shame and embarrassment among the Serbian people.” But after watching the film even Ivković backtracked from this position. When asked by a reporter whether he thought the massacre in Srebrenica did not in fact take place, he replied that he “allowed that there were crimes.”7 While this was not much of an admission, it came from the chief representative of the political party from whose ranks ICTY’s most prominent indictee came, and suggested that even Milošević’s supporters could be receptive to new information.
Similar conclusions could be suggested on the basis of a (nonrandom sample telephone) survey conducted in July 2001 by the weekly magazine NIN. Although only 36.5 percent of respondents supported the decision to send Milošević to The Hague, 57.5 percent agreed that he was responsible for war crimes. Among the main objections to Milošević’s extradition were the hurried manner in which it was carried out,8 the compromising timing of the act,9 and the belief that an international trial would make it impossible to bring Milošević to account for domestic crimes.10
While the change of regime and the increased availability of information may have encouraged a higher level of readiness to address questions of guilt, the question remained as to how. This chapter discusses the main mechanisms that have been used for establishing guilt and affirming responsibility in the wars of Yugoslav succession: national courts in the countries involved, international courts and tribunals, and “truth commissions.”
The Role of National Courts
Clearly the domestic judicial institutions of the countries where violations of international law were committed play an important role in addressing guilt for those crimes. There are no crimes in the statute of ICTY or ICC that are not also crimes under the criminal codes of all the successor states to Yugoslavia (as they are in the criminal codes of every UN member state). The Hague and Geneva Conventions on the conduct of war are also binding on all combatants. Toward the beginning of the wars in October 1991, the Yugoslav army issued a declaration detailing its recognition of the obligations imposed by the Hague and Geneva Conventions.11 A joint declaration of the warring parties in the Croatian conflict and the International Committee of the Red Cross in 1991 detailed obligations under the two conventions, and the three warring parties in Bosnia-Herzegovina signed a similar joint declaration in 1992.12 Combatants demonstrated their recognition of the authority of international law in indirect ways as well: Vasiljević tells of a discharged paramilitary fighter in the Bosnian War who was issued a document declaring that he “participated in the struggles for the liberation of the Serbian territory of Zvornik and did not participate in any criminal activities.”13
Obviously these agreements and declarations did not achieve much in terms of actually preventing violations.14 On the contrary, a tremendous abyss between the public rhetoric of political leaders and the actual behavior of their administrative and military forces was apparent throughout the wars. The declarations do show, however, that at no time during the wars could the leaders of any state or entity claim that they were unaware of or did not recognize their obligations under international law. These obligations were not imposed, but derived from domestic law, from agreements voluntarily signed by the combatants, and from declarations made openly by the combatants. Among the obligations are the duties to prevent violations and to record and punish violations.
If one factor contributed more than others to the involvement of international organizations and the United Nations in the wars of Yugoslav succession, it was the failure of the warring parties to meet the obligations they had recognized under international law. Not only were violations not prevented, they were committed at a level that both aroused international concern and appeared to represent state policy.15
The story of information gathering, prosecution, and punishment is somewhat more complicated. Trials were 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
