jour nal of
peace
R
Expanding the scope of post-conflict
justice: Individual, state and societal
responsibility for mass atrocity
E S E A R C H
Journal of Peace Research
48(2) 157–169
ª The Author(s) 2011
Reprints and permission:
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DOI: 10.1177/0022343310394696
jpr.sagepub.com
Jelena Subotic
Department of Political Science, Georgia State University
Abstract
Over the past two decades, a new international regime of individual criminal accountability has emerged as a dominant regulatory mechanism to address gross human rights violations. At the same time, states are still pursuing claims
against each other for human rights abuses in international courts. These two concepts of responsibility – individual
and state – are not only fundamentally at odds with one another; they also exclude the third, critical aspect of political
accountability – societal responsibility for past violence. This triple accountability – of individual perpetrators who
committed the crimes, of the state that hired them to implement the practices, and of society that supported or tacitly
approved repressive state policies – is a complex political condition that the current transitional justice framework is
ill equipped to deal with. Individualization of accountability serves the retributive purpose of justice, but it is woefully inadequate to address the collective political ideologies that made such heinous crimes possible in the first place.
Domestic elites can be enthusiastic supporters of individual human rights trials – not because they want to bring
about justice, but because they want to shield the state and society from complicity in past crimes. To address this
paradox, this article presents a new framework of post-conflict accountability that includes individual, state, and societal responsibility for human rights violations. The framework is then applied to the case of Serbian responsibility for
war crimes committed in Bosnia.
Keywords
accountability, Bosnia, Serbia, transitional justice
When Radovan Karadzic, the Bosnian Serb leader
accused of genocide, crimes against humanity, and war
crimes by the International Criminal Tribunal for the
former Yugoslavia (ICTY) was arrested in Belgrade in
July 2008, international human rights groups were jubilant. Karadzic’s arrest is a ‘blow against impunity’ everywhere, declared Human Rights Watch. The arrest ‘is a
step toward redress for Bosnian victims and families who
have suffered horribly’ (Human Rights Watch, 2008).
And that it certainly was. After 13 years in hiding, the
man behind the worst atrocities in Europe since World
War II was finally behind bars.
Karadzic’s arrest served many other political purposes
as well. Since the European Union requires Serbia to
fully cooperate with the ICTY before it considers it a
potential member candidate, the Serbian government
placed the arrest in the context of its European ambitions.
Karadzic’s arrest was a sign that the Serbian government
had a ‘very ambitious European agenda’, Serbia’s
foreign minister announced (B92, 22 July 2008). The
European Union officials also claimed credit, arguing
that the arrest was the result of sustained European pressures on Serbia, its clever use of European ‘soft power’
(Smyth, 2008).
But this event did little to change the perception of
the past in Serbia. Thirteen years after the war in Bosnia,
Corresponding author:
[email protected]
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with all the evidence of Serbian crimes presented in dozens
of trials at The Hague, the Serbian people still refused to
believe that appalling crimes were committed in their
name. A survey conducted immediately after Karadzic’s
arrest revealed that one-third of the responders saw
Karadzic as a hero and only 17% saw him as a war criminal,
while the overwhelming majority (86%) believed that the
ICTY was biased against the Serbs (B92, 25 July 2008).
More important, Karadzic’s arrest was interpreted by the
Serbian government as well as the public as the event that
will finally end international demands for Serbia to reckon
with its violent past. In the words of a Serbian government
minister, ‘the Hague story must end’ (Radio Free Europe,
13 April 2009).
I argue in this article that the principal reason post-conflict justice often has disappointing domestic outcomes is
that the current justice framework that relies primarily
on individual criminal accountability is ill suited for collective crimes such as crimes against humanity. It is also likely
to lead to perverse outcomes as governments will support
individual trials in order to shield the state and society
from complicity in them. To correct for this paradox, I
develop a transitional justice framework that includes individual, state, and societal responsibility for mass atrocity.
I first present a brief overview of the current paradigm
of individual criminal accountability. I then discuss why
we need additional levels of responsibility – state and
societal – to fully deal with legacies of mass violence.
I then apply this framework to the question of Serbia’s
responsibility for atrocities in Bosnia.
Contemporary transitional justice framework
The broad field of transitional justice is anchored in the
assumption that finding out the truth about past atrocities, identifying the perpetrators, and punishing them
appropriately achieves justice by ending impunity
(Mendeloff, 2004).1 Human rights trials such as those
at The Hague are important because they can deter
potential human rights abusers from acting in the future.
In international human rights practice, this increasingly
dense international expectation that transitional states
1
While many of the mechanisms I describe below could more
precisely be described as mechanisms of international criminal
justice, I use the term ‘transitional justice’ to incorporate a much
wider variety of tools for addressing past wrongs. International
criminal justice, as has developed over the past few decades, uses
primarily the mechanisms of trials (of individuals, and increasingly
less often, states). The mechanisms of transitional justice with
many non-trial type instruments offer a broader spectrum of
possibilities that I want to explore.
will systematically deal with legacies of past violence has
translated into a number of distinct justice mechanisms.
Transitional justice processes have been carried out
through international and domestic trials of human
rights violators and truth commissions, as well as reparations, lustration, museums and sites of commemoration,
apologies, community initiatives, and other unofficial
mechanisms (Roht-Arriaza & Mariezcurrena, 2006). In
fact, so unprecedented has the proliferation of various
transitional justice mechanisms been that more than
two-thirds of all transitional states in the past 20 years
have instituted or debated instituting some mechanism
of transitional justice (Sikkink & Walling, 2007).
In the cases of human rights trials, the individual
accountability sought is criminal, and the justice delivered is retributive. Some truth commissions and community initiatives understand accountability to be primarily
moral (Gutmann & Thompson, 2000). Other community efforts, for example the gacaca trials in Rwanda, produce yet different kinds of sanctions, such as community
service (Daly, 2002). Across these different mechanisms,
however, the primary focus of the transitional justice
process is the individual accountability of the perpetrator, with greater society benefiting from the result. In
fact, such is the dominance of individual approaches to
transitional justice that we are possibly witnessing the
institutionalization of individual accountability as the
primary regulatory mechanism in human rights, with the
International Criminal Court as the pinnacle of this dramatic change (Sikkink, 2009).
Under individual criminal accountability, punishment is effective and enforceable (the perpetrator is put
behind bars), an improvement over the often vague
sanctions that have been applied to the state. For too
many years, perpetrators of gross human rights violations, often including heads of state, were shielded by
the state or were immune to prosecution under norms
of sovereignty (Lutz & Reiger, 2009). The renewed
focus on individual criminal responsibility has made
impunity for mass atrocity increasingly difficult to
defend, and governments are often finding that their
own citizens are demanding more accountability for
grave human rights abuses that may be happening
beyond their borders (Lutz & Sikkink, 2001).
The sharp focus on individual criminal accountability, however, leads to its own paradoxical outcomes.
While an important step toward ending impunity and
amnesty and providing some sense of justice for the victims, it can be – and frequently is – used by national governments to shield the state from responsibility for
atrocities. If individuals are convicted of crimes, this may
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relieve the pressure on states to offer apologies or provide
reparations or other kinds of redress. More important, it
may remove the urgency of addressing the causes of
crimes and the policies that led to them. Governments can
point to trials of high profile perpetrators and argue that
justice has been done and it is time to move on (Cohen,
2003). In fact, this is exactly the strategy governments
of Serbia and Croatia have used in supporting the trials
of high-ranking officials accused of genocide and crimes
against humanity. By supporting individual trials, the governments were able to pre-empt calls for state responsibility
and even use the trials to put forward the narrative of
individual, isolated crimes that are removed from Serbian
and Croatian state wartime efforts (Subotic, 2009).
The verdict that individual criminal accountability is
becoming the primary regulation of mass atrocity may,
therefore, be premature as well as normatively undesirable from the perspective of transitional justice goals.
Parallel to individual prosecutions, states are still pursuing claims against each other for human rights abuses in
front of international courts. For example, Bosnia
recently filed a genocide claim against Serbia in the International Court of Justice (ICJ), a lawsuit that created
great international attention and significant political
consequence in the region (Dimitrijevic & Milanovic,
2008). In the next section, I discuss both theoretical and
normative reasons for retaining state accountability for
mass atrocity as part of the international regulatory
mechanism in the sphere of human rights.
State accountability for mass atrocity
The most obvious reason to maintain state accountability as part of the transitional justice framework is that
massive human rights abuses are quite often state crimes
– not isolated incidents by individual soldiers, but efforts
so large in scale that they can only be successfully
implemented by an organized and bureaucratized state
apparatus (Lang, 2007). Focusing only on individual
perpetrators therefore disconnects the act of violence
from a larger state policy that made the atrocities possible
in the first place. The necessity of maintaining state
accountability for gross human rights violations is also
evident in the many transitional justice mechanisms
states adopt that require some degree of state responsibility: issuing state apologies or reparations to victims are
fundamentally state actions which implicitly recognize
the responsibility of the state for past violence.
It is important to distinguish at this point the state
from the regime. I understand the state in a Weberian
sense, as an entity that claims monopoly on the legitimate
use of violence on a given territory. I understand regimes
in this context to be periods of continuous control of the
state apparatus by a single political faction or leader. Institutions of the state, therefore, transcend individual
regimes. A political transition is not the end of the state;
it is the end of the regime. The state continues to operate
and use its monopoly of force to pursue its policies. If the
new regime inherits state instruments of power, it can also
use these instruments to address past wrongs.
State accountability for mass atrocity is hardly a novel
idea. Thomas Franck argued that ‘when the state commits a great evil, it cannot be allowed to escape responsibility by the punishment of a few leaders’ (Franck,
2007: 569). Lang claimed that individual accountability
for mass atrocity is insufficient as individuals in warfare
act as and through institutional structures of the state
(Lang, 2007). Individuals rarely make wartime decisions
with full autonomy from the state and outside a specific
political context. Instead, ‘they act based on a social
understanding of war and their particular role in that collective enterprise’ (Crawford, 2007: 190). They act on
behalf of the state which has authorized and created the
specific policy that led to atrocity.
The reliance on individual criminal accountability for
mass atrocity is, therefore, insufficient to address the complex relationship between the individual and the state in
pursuit of mass violence. Individuals should certainly be
held accountable for crimes they have committed. But
so should the states that ordered, organized, and implemented the policies. Accountability for atrocity needs to
be official in order to matter. Some good needs to come
out of a history of violence – official state apology, reparations, or state supported commemorations and sites of
memory. These initiatives will not be produced in trials
of individual perpetrators if the state disassociates itself
from the policy the perpetrator put in practice.
But this still is not enough. Like individual perpetrators, the state does not act in a vacuum. Even the most
totalitarian of states are still to some degree the products
of their social environments and contexts, which made
the institutionalization of a totalitarian regime possible.
What we need, therefore, is another level of accountability for mass crimes carried out by individuals on orders
from the state. This is the societal responsibility for atrocity, the missing pillar in the current conceptualization of
transitional justice theory and policy.
Societal responsibility for mass atrocity
I understand society to be an enduring social group whose
members have developed organized and institutionalized
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patterns of relationships through interaction with one
another, and who act under the structural constraints of
the state in which they live. I purposefully differentiate the
concept of ‘society’ from that of the ‘nation’, which is an
imagined community of people who share a belief in
common culture, traditions, interests, and purpose. This
distinction is important because my conceptualization of
societal responsibility involves responsibility of citizens
of offending states on the basis of citizenship and societal
membership, and not based on their national identity or
other kinds of ‘deeply rooted’ cultural affinities. Citizens
of Nazi Germany or 1990s Serbia are responsible for atrocities of their state because they provided a permissive
social and political environment for the atrocities to occur
and did not do enough to prevent them. Their responsibility does not derive from some inherent national flaw or
genocidal intent. This is my primary point of departure
from cultural explanations of mass atrocity (for example,
Goldhagen, 1996).
In order for society to have responsibility, it has to
have agency. So, where is this societal agency located and
how is it measured? Since the state is the agent or representative of its citizens, members of society can also bear
significant responsibility for the acts of creating, approving, or building a social and political context in which
state-led atrocities could have taken place (Parrish,
2009). Citizens can also be held responsible for agreeing
to and materially supporting – for example, through
taxation – state policies that produced mass atrocity.
These citizens, even in democracies, have either allowed
these policies to progress, or have failed to stop them.
They can be held morally culpable because they failed
to disassociate themselves from such criminal practices.
They bear societal responsibility for mass atrocity.
Individual leaders, therefore, should not be the only
ones responsible for mass violence, since their actions did
not materialize out of thin air. They built their policies
on a societal receptivity to violent claims that were
broadly accepted, normalized, and routinized in society
and gave criminal policies a patina of legitimacy. This
normalization of violence produces a ‘complicity cascade’
– a social and political environment where committing
acts of mass violence ‘becomes a product of conformity
and collective action, and not delinquency and individual pathology’ (Drumbl, 2007: 8).
Adding a third dimension of accountability is also
important from the perspective of international law. The
selection of a few individuals to be punished for systemic
mass violence does not adequately address the problem
that victims of mass atrocity are brutalized because of
their group characteristics (ethnicity, religion, gender,
race), usually by perpetrators who act on behalf of their
groups, often from an ideology of superiority. This
centrality of the individual in international criminal
law often in practice means that ‘the enemy of humankind is punished no differently than a car thief’ (Drumbl,
2007: 5). The centrality of the individual therefore leaves
bystanders, people actively or tacitly complicit in atrocities or benefiting materially or socially from atrocity,
completely outside the purview of international criminal
law (Fletcher, 2005).
From the perspective of normative transitional justice
goals, societal responsibility is necessary to combat denial
of atrocity in the community of perpetrators. Exclusive
focus on individualizing guilt is in direct tension with the
goal of countering denial of broad social complicity in
mass crimes (Leebaw, 2008). In fact, if individualizing
guilt becomes successful, it offers individuals a way out,
an opportunity to project the responsibility to a few
select individuals and deny their own culpability for massive crimes that were committed in their name. This is
how ‘myths of collective innocence’ are created and perpetuated (Fletcher & Weinstein, 2002: 580).
The inadequacy of individual criminal accountability
to successfully deal with mass atrocity should by now be
evident. While philosophy and political theory have dealt
with issues of collective and social responsibility at length
and in depth (May & Hoffman, 1991; Radzik, 2001),
contemporary transitional justice scholarship has been
resistant to incorporating these notions into theory and
practice. This is perhaps understandable from a strategic
perspective, as the notions of collective responsibility
have often been incorrectly conflated with collective guilt
– a proposition that makes liberal internationalists
queasy and uncomfortable. Practically, as well, designing
policies to deal with societal responsibility is difficult and
particularly prone to politicization and backlash. Transitional justice advocates may therefore fear that by dealing
with responsibility of everyone, they may end up with
responsibility of no one. While I take these objections
seriously, the consequences of conceptualizing responsibility for mass atrocity as being solely, or primarily, in the
domain of individual criminal accountability are greater
than the complications that will inevitably ensue as we
craft approaches to address societal responsibility for
mass atrocity. Not only is the focus on individual
accountability inevitably limiting in scope – only a few
select individuals will ever stand trial – but individualization of accountability if pursued in isolation from other
mechanisms of dealing with the past will almost certainly
serve as an escape hatch for bystanders, conflict entrepreneurs, and general members of society who supported,
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approved of, and rooted for success of the criminal enterprise. I therefore propose a three-tier framework that
would address different aspects of mass crimes, their perpetrators, and possible mechanisms of dealing with their
legacies.
Individual criminal accountability should be the
option of first resort. Direct perpetrators, leaders and
officials who ordered the killing, and political masterminds of the atrocity policy should be held criminally
liable. There is a vast literature on human rights trials,
and there are many debates within transitional justice
and international law on how these trials should be
designed, where should they be located, and what should
be the appropriate punishment of the convicted (Roper
& Barria, 2006). The exact mechanisms of trials are not
of my immediate interest here. I am more concerned
with making sure that as many perpetrators of all ranks
– from foot soldiers to heads of state – are prosecuted
in an appropriate and proportional manner.
The second and independent pillar of any transitional
justice policy should be allocation of state responsibility
for mass crimes. For example, victim states can submit
claims for reparations or redress before international
courts. A preferable mechanism would be for the state
implicated in mass crimes to issue apologies or provide
reparations on its own prompting, without the tools of
international law. This may not be that far-fetched to
conceptualize. Willing to engage state responsibility for
past violence can be useful for new governments politically, as they use transitional justice to signal – domestically and abroad – a profound break with the past.
The third pillar of transitional justice – societal
responsibility for mass atrocity – is the most significant.
It is only through a societal reckoning with the criminal
past that the hateful ideologies that led to atrocity could
be delegitimized and neutralized. Societal responsibility
provides ‘normative discontinuity with the bad past’
(Dimitrijevic, 2006b). Victims of atrocities should know
that the group in whose name violence was carried out
has come to realize that what was done was wrong and
will not happen again. And it is particularly necessary,
indeed imperative, for the perpetrator society to come
to an understanding that what was done was wrong, that
it was not how a ‘normal’ and decent society operates,
and that politics has to change. In the absence of this
type of responsibility, political ideologies will remain
intact and a renewed cycle of violence can begin. The
truth commission model can be especially useful to this
kind of enterprise. But there are other institutional
options as well: research commissions, commissions of
memory, investigative reports, education reform, or
media analysis. Regardless of the model chosen, systematic addressing of societal norms, values, beliefs, and practices should be a priority of any transitional government
and its international sponsors.
The next section illustrates these arguments in the
case of Serbian responsibility for mass atrocity in Bosnia.
Serbian responsibility for mass atrocity in
Bosnia
Slobodan Milosevic’s rule of Serbia (1987–2000) was a
period marked by brutal ethnic conflicts in Croatia,
Bosnia, and Kosovo, intense international isolation, and
brutal domestic repression. The Serbian-controlled
Yugoslav National Army (JNA) and various paramilitary
groups were directly involved in all three conflicts
(Human Rights Watch, 2006). Serbian forces committed horrendous atrocities against civilians including,
most notoriously, the massacre of 7,000 Bosniac boys
and men in Srebrenica. In 2000, Milosevic was finally
removed from power in a popular revolt after he refused
to accept the results of the presidential election.
Individualization of responsibility as a strategy
In the aftermath of Milosevic’s ousting, Serbia’s transitional government faced strong international pressures
to hold perpetrators of atrocities – including Milosevic
himself – criminally accountable. The principal mechanisms of transitional justice have been individual trials at
the ICTY and, since 2003, in front of the Serbian War
Crimes Chamber (WCC).2 However, cooperation with
the ICTY was the international community’s primary
measurement of Serbia’s transitional justice efforts. This
choice of justice mechanism was further enforced by the
policy of conditionality, by which almost all international awards Serbia applied for – international aid,
financial loans, membership of the EU and NATO –
were linked to arrest and transfer of war crimes suspects
to The Hague.
There is no denying the exceptional historical importance of the Hague tribunal for documenting the vast
scale of atrocities committed during the Yugoslav wars.
The ICTY has served an invaluable purpose by creating
a body of evidence of war crimes that likely would not
have been collected in the absence of The Hague
2
See Zakon o organizaciji i nadleznosti drzavnih organa u postupku
za ratne zlocine [Law on Organization and Jurisdiction of
Government Authorities in Prosecuting Perpetrators of War
Crimes] Sluzbeni glasnik republike Srbije [Official Gazette of the
Republic of Serbia], no. 67/2003.
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proceedings. The ICTY trials have also included
first-person testimonies of more than 3,500 witnesses,
giving them some public acknowledgment of their loss
and suffering (United Nations Development Program,
2006). At the same time, however, the exclusive focus
on individual responsibility has led to paradoxical
justice outcomes in Serbia.
The first and perhaps most obvious problem was that
most Serb war crimes suspects indicted by the ICTY
were in fact Bosnian Serbs. Very few were from Serbia
proper.3 Notable exceptions, of course, are Slobodan
Milosevic and a few other higher ranking officials. This
demographic point is not trite – the fact that the accused
individuals were ‘Bosnian’ Serbs, that is, from a different
background and working in a different political and wartime context, made their criminality appear much more
detached from the Serbian state and society. While the
fact that the ICTY has indicted more Serbs than either
Croats or Bosniacs has created a deeply felt sentiment
in Serbia that the international tribunal has an anti-Serb
bias (Saxon, 2005), the reality that most of them hailed
from Bosnia allowed the Serbian state and society to gradually disassociate themselves from the larger Serbian
wartime project. This has been evident in the continuing
excuses the Serbian government has provided to explain
why Bosnian Serb wartime commander Ratko Mladic
and remaining Hague fugitives cannot be located in
Serbia. They are instead residing in ‘foreign countries’
(Bosnia’s Serb Republic).
More important, the number of individual perpetrators indicted – Serbian or Bosnian Serb – has been quite
small compared to the size of the atrocities and the necessary manpower needed to carry them out. The ICTY
has so far indicted about 100 individuals accused of war
crimes, while the War Crimes Chamber in Serbia and its
sister institution in Bosnia have only indicted a few
dozen (Ivanisevic, 2008). There are simply many more
perpetrators – some who came up with atrocity plans,
some who ordered them, some who put them in practice,
and some who directly killed – than a few hundred people unfortunate enough to have been caught. Clearly
thousands of perpetrators cannot be processed through
the criminal justice system. But should they all just continue with their lives with complete impunity?
Individual trials at the Serbian War Crimes Chamber
have also been problematic. Serbian war crimes prosecutors have been reluctant to tie the Serbian state directly to
3
Among the indicted, 64 are Bosnian Serbs and 16 are Serbs from
Serbia proper. See www.icty.org.
the Balkan wars, a political perspective reflected in WCC
indictments. In most cases only direct perpetrators have
been indicted, and even then only members of paramilitary groups or territorial defense, while indictments have
not included any link between these groups and Serbian
official policy, the army or police forces (Ivanisevic,
2008). Furthermore, the prosecutor has been reluctant
to deal with crimes committed by Serb forces against
Kosovo Albanians – the result of reinvigorated anti-Albanian public sentiment that overwhelmed Serbia in the
aftermath of Kosovo’s declaration of independence in
February 2008 (Tosh & Roknic, 2008). Finally, the prosecution had to deal with frequent interference of the
Serbian Supreme Court, which has on numerous occasions overturned convictions or significantly reduced
sentences (Helsinki Committee for Human Rights in
Serbia, 2009). In other words, domestic war crimes have
often resembled processing of perpetrators as if they are
‘a few bad apples’, disconnected from the larger chain of
command and from a major national project, in effect
‘whitewashing’ the state (Dimitrijevic, 2009).
A vivid example of this strategy was the way in which
the Serbian state responded in 2005 to the public airing
of a videotape showing the torture and executions in
Srebrenica. The police used the tape to identify Serbian
perpetrators (with clearly marked Serbian paramilitary
‘Scorpions’ insignia on their uniforms) and in a matter
of weeks eight of them – but none of the officers who
ordered the killing – were arrested and charged with war
crimes in the War Crimes Chamber. While certainly a
welcome outcome for justice accountability, the Serbian
government used the arrests to individualize responsibility and shield the state. There were intensive efforts from
all levels of government to disconnect Serbia’s role from
events in Srebrenica, as well as from paramilitary formations that were active there. The Serbian defense minister
worried that ‘broadcasting of that recording ... once
again tainted the international image of Serbia,’ but he
added, ‘The entire case indicates only the responsibility
of individuals and not of the people and the state’
(Danas, 7 June 2005).
Within weeks, the video was no longer shown on television and the story disappeared from the public debate.
In public opinion polls conducted shortly after the Srebrenica video broadcast, only 32% of citizens thought the
video was authentic. In a poll conducted prior to the
broadcast, 40% of the Serbian population acknowledged
that a crime had been committed in Srebrenica. After
they saw the video, however, the number of those who
held no opinion or claimed lack of knowledge about the
event visibly increased. This indicates that the people
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were more prepared to acknowledge the crime in the
abstract than when faced with the evidence of it.4
To conclude, while successfully prosecuting a dozen
war crimes suspects, war crimes trials at The Hague and
in Belgrade have been insufficient and largely ineffective
in the context of broader transitional justice goals.5 Since
the most important debate – about the nationalist ideology that made these crimes possible – has never been
held in Serbia, individual criminal accountability has led
to perverse outcomes and has contributed to a renewed
cycle of denial and indifference.
The responsibility of the Serbian state after regime change
The fact that the mass atrocity inflicted on the Bosnian
population was orchestrated by the Serbian state has considerable research support (Ramet, 2002; Silber & Little,
1996). Evidence presented at the trial of Slobodan Milosevic at The Hague also provided detailed accounts of the
power structures of the Serbian state, its relationship with
its Bosnian and Croatian proxies, and the chain of command (Human Rights Watch, 2006). While there are
some notable scholarly exceptions to assigning culpability
to the Serbian state (Hayden, 1999), the overwhelming
academic consensus is that the state of Serbia and the
Milosevic regime are to blame for the war onset and the
majority of atrocities committed (Gow, 2002; Ramet,
2005a). In addition, there is significant evidence that the
Serbian state armed Bosnian Serb troops, provided logistical support, and also directly committed atrocities. For
example, the participation of Serbian covert police forces
(‘Red Berets’) and paramilitary troops (‘Scorpions’) is very
well documented.6 The direct involvement of the state in
the atrocity, therefore, should not be under question.
A more interesting debate is about war aims. Was
Serbia’s aim genocide (Cigar, 1995; Sells, 1996),
4
Strategic Marketing Research, ‘Public opinion in Serbia: Views on
domestic war crimes judicial authorities and the Hague Tribunal
April 2005’. Report on file with author.
5
For an interesting insider’s account on why the ICTY prosecutor
charged only Milosevic and not a wider circle of Serbian leaders for
crimes against humanity in Croatia and Bosnia, see Hoare (2006).
6
Officially named the Special Operations Unit, the Red Berets were
formed as a paramilitary unit in 1990 to rouse Serb rebellion in
Croatia. At the end of the war, they were officially merged with the
regular security forces, and they remained part of the official police
forces after Milosevic was removed from power, making them much
more difficult to disband and prosecute (Anastasijevic, 2000). The
Scorpions paramilitary unit was created at the very beginning of the
war in Croatia in 1991. It functioned under the command of the
Serbian police or the former Yugoslav national army. Scorpions
carried out numerous war crimes in Croatia, Bosnia, and Kosovo
(Helsinki Committee for Human Rights in Serbia, 2008).
population transfer (Bennett, 1995), or power grab
(Gagnon, 2004)? This debate is important because it
shapes the discussion of what the Serbian state should
be responsible for and what is the proper redress for a particular kind of state crime. This issue transcended the academic debate into international legal jurisprudence and
public policy when the state of Bosnia-Herzegovina filed
a complaint with the ICJ, charging that Serbia violated its
obligations to prevent and punish genocide under the Genocide Convention. Bosnia claimed that these violations
constituted wrongful acts carried out by Serbia and entailed
compensation for losses Bosnia suffered during the war.
International courts have dealt with the character of
the Bosnian atrocities before. The ICTY passed its first
genocide conviction in 2001, in the case against Bosnian
Serb commander Radislav Krstic, who was accused of
supervising the Bosnian Serb massacre of Bosniacs in
Srebrenica in 1995. Upholding the genocide sentence,
the ICTY Appeals Chamber stated:
By seeking to eliminate a part of the Bosnian Muslims,
the Bosnian Serb forces committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living
in Srebrenica, a group that was emblematic of the Bosnian Muslims in general.... The Appeals Chamber states
unequivocally that the law condemns, in appropriate
terms, the deep and lasting injury inflicted, and calls the
massacre at Srebrenica by its proper name: genocide.
Those responsible will bear this stigma, and it will serve
as a warning to those who may in future contemplate the
commission of such a heinous act. (Prosecutor v. Krstic,
ICTY Appeals Chamber Judgment, 19 April 2004)
While the Krstic decision concluded that Bosnian Serb
forces did, indeed, commit genocide in Srebrenica, the
claim before the ICJ was much broader. It was to hold
the state of Serbia responsible for the genocidal acts committed by its proxies, Bosnian Serb forces.
That the ICJ would rule in Bosnia’s favor was a foregone conclusion in the Bosnian press. The reporters
competed in calculating the amount of reparations Serbia would pay, often inflating the expectations to as
much as $100 billion (Numanovic, 2006). In such a
political environment, the February 2007 ruling came
as a huge shock to the Bosnian public. In the longest ruling in ICJ’s history, the court found that Bosnian Serb
troops, not the Serbian state, had committed genocide
in Bosnia. The ICJ also determined the massacre at
Srebrenica as the only ‘confirmed’ case of genocide,
dismissing Bosnian claims that the genocide had already
begun in 1992 in eastern Bosnia. The ICJ ruling made a
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journal of PEACE RESEARCH 48(2)
164
direct link between Serbia and the Bosnian Serbs but failed
to determine that it was Serbia that ordered the killings of
Bosniac civilians. The Serbian state, therefore, was found
not guilty of committing genocide, but it was deemed
responsible for failing to prevent the genocide from happening. Not surprisingly, the ruling came as a relief to
Serbia, which was spared from paying large reparations, but
it was a huge disappointment for Bosniac leaders and war
survivors. Bosnian outrage was further inflamed a few
months later when evidence emerged that the ICJ was
unable to access secret documents that more directly connected Serbia to orders for genocide. These documents
were allegedly provided to the ICTY by the Serbian government but on condition that the ICTY not share them with
the ICJ in the genocide case (Simons, 2007).
Regardless of its conclusion, the ICJ case raises a series
of issues relevant to the larger discussion of Serbian state
responsibility for mass atrocity in Bosnia. The first question is the proper allocation of responsibility to the
Serbian state, against evidence that most crimes were
committed by Bosnian Serb troops, not directly by the
Serbian army. The ICJ has dealt with this problem
directly, and has come up with a somewhat tortured conclusion: Serbia was not guilty of perpetrating genocide,
but was guilty of not preventing it from happening. Without getting into the many legal arguments that guided the
ICJ decision, this conclusion begs the question: if Serbia
could have prevented genocide, could it have also committed it? In other words, if there is evidence that Serbia
was able to control its Bosnian proxies but refused to do
so, isn’t this also evidence of the fact that it was Serbia calling the shots in Bosnia, while the Bosnian Serb troops
were only implementing Belgrade’s orders?
More important, lost in the victims’ disappointment
with the ICJ verdict is the fact that the ICJ decision showed
how very difficult it is, within the current parameters of
international criminal law, to hold a state responsible for
the actions of non-state actors. However, the ICJ judges
indicated in the final decision that, in principle, states can
be held responsible, but they concluded that in the Serbian
case, the evidence did not sufficiently support such a link.
This is a legal precedent that future cases can build on.7
In the aftermath of the ICJ verdict, Serbian leaders
argued that the court vindicated their position that the
state of Serbia should not be responsible for the criminal
acts of the previous regime. However, as discussed above,
the state outlasts regimes and has the capacity to
both commit crimes and to address them. Milosevic’s
ousting in 2000 was not the end of the Serbian state; it was
the end of the regime. The Serbian state under the new
regime, therefore, cannot claim impunity for criminal acts
of the previous regime, much as Serbia’s post-Milosevic
government claimed amnesty for Milosevic’s crimes.
In fact, the post-Milosevic government has remained
largely silent on the issues of past abuse, only mentioning
them on occasion of a war suspect’s arrest, which is then
put in the context of Serbia’s progress. Although Serbian
president Boris Tadic issued an apology of sorts to the
people of Bosnia, the hedging of the apology made it
sound insincere and overtly politicized:
I apologize to all those who suffered from crimes committed in the name of the Serb people. However, the
Serb people did not commit these crimes but rather
criminal individuals. It is impossible to blame one
nation for this because the same crimes had been committed against the Serbs. In this context we all need to
apologize to one another, and if I need to be the first
to do so here I am. (BBC News, 6 December 2004)
The first official apology by a Serbian leader for the atrocities committed by Serbian troops in Bosnia made international news as potentially marking the beginning of
national healing and reconciliation, but it left the people
of Bosnia cold. They perceived the apology as not heartfelt and aimed at moral equivalency of crimes committed
by all sides (B92, 7 December 2004). What Bosnians
wanted was a true atonement of the Serbian state for the
horror it inflicted upon the people of Bosnia, and for
that, they are still waiting.8
There is, of course, a reason why the Serbian government failed to address past violence or claim any responsibility for it. The nationalist ideological matrix that has
brought the policies of the 1990s has remained
unchanged in Serbia. This, in turn, is the consequence
of continuing overt or tacit approval of the Serbian criminal national enterprise by the majority of the Serbian
citizenry (Dimitrijevic, 2008). This is why, in the Serbian case, the road to responsibility for mass atrocity
needs to begin from the bottom up.
8
7
Croatia put forward a similar claim to hold Serbia responsible for
genocide against Croats during the 1991–1995 war. The case
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Croatia v. Serbia) is pending before the
International Court of Justice at the time of writing.
It is worth nothing that the Serbian Parliament, following a 13-hour
fiery debate on 31 March 2010, adopted the Declaration condemning
the crime in Srebrenica ‘in a manner determined by the ICJ ruling’.
The Declaration does not use the term ‘genocide’ and includes a call
for the adoption of a new Declaration condemning crimes
committed against the Serbs (B92, 31 March 2010).
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The significance of Serbian societal responsibility
Fifteen years since the end of the brutal war, the Serbian
public still largely refuses to believe that the Serbs committed war crimes and, instead, blames other nations and
ethnic groups for starting the war.9 This deeply
entrenched denial is at the root of the obstacles Serbian
society has in facing its past seriously.
There are a number of reasons why the Serbian public
is so hostile to revisiting the criminal past. First, Milosevic’s policies were supported by a significant majority of
the Serbian electorate, especially in the first ten years of his
reign (1987–96). Milosevic era elections were neither
completely free nor fair, but the system was still open for
challengers. And while Milosevic certainly would not have
allowed for another winner, he did tolerate token opponents, though they never came even close to winning significant majorities. Opinion polls consistently showed
Milosevic as the most trustworthy and popular politician
throughout the 1990s (Ramet & Pavlakovic, 2005). It
was not until 1996, in the face of large public protests over
election fraud, that he began to lag in the polls. Milosevic’s
rule, therefore, should not be understood as a straightforward autocracy; for a long time, his leadership and policies
were rooted in a national public consensus. Therefore,
Serbian citizens who voted for Milosevic are responsible
for giving the regime the mandate to pursue the politics
of mass atrocity. Similarly, to the extent that nationalist
political parties continued to pursue the main principles
of the Serbian nationalist platform of the 1990s after
Milosevic was ousted, their voters are responsible for perpetuating the harmful denial of past atrocity.10
9
For example, in a 2005 survey, 81% of respondents answered that
Serbs had suffered the most during the Yugoslav wars, and 74%
believed that Serbs had committed the fewest crimes of all ethnic
groups in the former Yugoslavia. Strategic Marketing Research, ‘Public
opinion in Serbia: Views on domestic war crimes, judicial authorities
and the Hague Tribunal April 2005’. Report on file with author. In a
survey conducted in 2006, 64% of respondents believed that facing
the crimes of the past was important, but 35% of those believed this
was important to vindicate the Serbs from false accusations of war
crimes. OSCE, ‘Public Opinion in Serbia: Views on Domestic War
Crimes Judicial Authorities and the Hague Tribunal, December 2006’
(http://www.osce.org/documents/srb/2007/03/23518_en.pdf).
10
For example, the Democratic Party of Serbia issued a Declaration
on war crimes that states, ‘Serbia has a special vital and historical
interest in the explanation and judgment of all war crimes
committed in the recent history of Yugoslavia in which the Serbian
nation was the greatest victim. First in terms of victims, Serbia
must be first in the judgment of all crimes.’ DSS, ‘Deklaracija
o osudi ratnih zlocina na prostoru nekadasnje Jugoslavije’
[Declaration on condemning war crimes on the territory of the
Former Yugoslavia], 15 June 2005 (http://www.dss.org.rs).
More fundamentally, societal participation in the
criminal past was widespread and multilayered. Many
of the Milosevic era political elites – the church, elite
intelligentsia, and the military – remained in power after
the transition and actively blocked post-conflict justice
projects because of their own responsibility in inciting
or conducting them. Other participants were direct perpetrators – soldiers and members of paramilitaries who
now led civilian lives. Even more significantly, there was
the psychological participation of a large majority of the
population who approved of the nationalist policy in
general terms. It is difficult to expect from them a profound re-examination of their own personal responsibility for both action and inaction that made atrocities
possible on such a wide scale.11 Simply, they do not
think that what was done was wrong, and they do not see
what they should be responsible for. Finally, there is the
responsibility of ‘everyday Serbs’, who did not strongly
support the atrocity policy but did not oppose it either.
They have also refused to share responsibility, because
they claim that they were not aware of the consequences
of political action they did not closely follow. However,
the ignorance shield is not persuasive. In a semi-authoritarian regime such as Milosevic’s during the 1990s,
there were pockets of independent media that reported
on the vile nature of the Serbian nationalist project and
the level of atrocity committed.12 The ignorance excuse
becomes particularly hollow after the regime transition,
when the media became nominally independent of political control, although still quite uninterested in reporting
on the criminal past (Helsinki Committee for Human
Rights in Serbia, 2004). The information was not easy
to come by, but it was there for anybody who wanted
to look.
Another possible explanation is that the character of
the crimes committed directly influenced the Serbian
societal and political response. The fact that the crimes
had been committed against non-Serb civilians, against
‘foreign enemies’ in an internationalized war context,
made appeals to address individual and societal
11
Zarko Korac (president of the Social Democratic Union and
former Serbian deputy prime minister). Interview with author,
13 October 2005, Belgrade.
12
Notable examples are radio station B92, newspapers Nasa Borba
and Danas, and weekly magazine Vreme. At the height of the
atrocities in 1993, B92 led the effort to set up an independent
Association of Independent Electronic Media (ANEM) that would
rebroadcast B92 programs but also produce their own and
broadcast them across Serbia, to reach media markets in the more
government-controlled areas beyond Belgrade. See http://
www.anem.org.rs.
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journal of PEACE RESEARCH 48(2)
166
complicity in them much more difficult to maintain
than if the atrocities had been committed by Serbs
against other Serbs. This fact was further complicated
by the character of the postwar settlement, which institutionalized ethnic divisions and separated warring sides
who now lived in different countries or in highly segregated in-country ethnic entities, without any incentive
to cooperate or interact with one another. This mostly
ethnic quality of both the crimes committed and the
post-conflict solution made the search for truth and justice that much more difficult and remote. Unlike other
major transitional justice projects in countries like South
Africa or Argentina – where truth, justice, and reconciliation were considered necessary for national healing and
preserving national unity – in the former Yugoslavia, the
major incentive – living together – was absent. This is
why it was so difficult to make facing the past an issue
of national priority: the people simply did not care about
atrocities committed against groups who lived in other
countries and with whom they were unlikely to ever
interact again (Fletcher & Weinstein, 2002).
Another reason for the continuing denial of the criminal past is the profound ‘ethnification’ of Serbian politics in the 1990s through massive nationalist
mobilization. Ethnic politics became the only lens
through which the population saw and interpreted the
world around them (Ramet, 2005b). This is why any
discussion of the criminal past and societal responsibility
for atrocities would always hit the wall of ethnic politics.
Society was unable to think of crimes committed in the
name of the nation in any other way other than as an ethnic war of self-defense. Consequently, post-conflict
efforts that required Serbia to face its crimes, acknowledge abuses, and punish the perpetrators flew in the face
of the public’s understanding of what the war was about.
To conclude, since Milosevic’s rise to power in 1987,
the Serbian people have been socialized by the elites into
a narrative that depicted their nation as a victim of vast
outside conspiracies that want to vanquish or destroy
it. The agents of destruction vary in the narrative and
across time, but they have historically been Kosovo Albanians, Slovenes, Croats, Muslims, the international community, the United States, and NATO (Bogosavljevic &
Logar, 2001). The national storyline for the past 20 years
in Serbia has been that of a victimized nation, of people
fleeing the enemy or engaged in self-defense against one
of their nemeses (MacDonald, 2002). It is hard to overestimate the saturation in the public discourse of this
idea. It cuts through all aspects of public life, compelling
politicians to address and solve it, and it partly explains
the public approval of the wars of the 1990s. In such
an environment, it is not surprising that efforts to systematically deal with legacies of the violent past have
failed. There has simply been no discursive space open
for this new message. In the words of a Serbian politician, Serbia after Milosevic was not ready to face its past,
‘like a patient is not ready to undergo surgery without
anesthetic’.13
In the light of this complex responsibility matrix, the
question becomes, what should be the appropriate
transitional justice mechanism for Serbia? I suggest a
three-tier transitional justice framework. First, individual
perpetrators should be held criminally accountable, but
each indictment should include the chain of command
and responsibility for the specific crime being adjudicated. This will avoid the paradox of using individual
trials to prosecute only a few isolated ‘bad apples’ without making the necessary connection to the bodies of the
state that designed and ordered the criminal policy. This
approach would enrich the individual trials model by
using the trials as part and parcel of a larger transitional
justice effort that expands the scope of justice to state and
social structures.
The second level should be state accountability. The
Serbian state should be held responsible for atrocities
committed in Bosnia, Croatia, and Kosovo and should
be required to offer official state apologies, pay reparations to victims either individually or through generous
community gifts (roads, schools, parks, memorial sites).
International transitional justice bodies could be asked to
monitor and enforce this process. The state should also
initiate an official commission of inquiry that would
have full government support, and the state should commit to broadly disseminate the results of the commission
and implement the commission’s recommendations into
state policy. The state should make efforts to make a
clear break with criminal policies of the past by, for
example, sponsoring education reform that would incorporate findings about Serbian war crimes of the 1990s.
The Serbian state should also create national days of
memory for victims of Serbian atrocities and set up
museums or other types of memorial sites to remember
victims and survivors.
Finally, the Serbian society needs to make amends
and this, of course, will be the most difficult transformation to accomplish. But this is a worthy attempt nevertheless. Admitting to some degree of responsibility of a
13
Author’s interview with Cedomir Jovanovic, president of the
Liberal Democratic Party, 26 October 2005, Belgrade.
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167
‘perpetrator society’ would alleviate the anxiety of the
victims because, as Linda Radzik explained,
Coming to terms with societal complicity can come in
many different ways, including a national truth and
reconciliation commission. This public body would
collect evidence from victims, broadly disseminate these
testimonials, and put them in a proper context of the
nationalist political ideology of the time. The commission could systematically articulate why the policies of
the past were criminal, and what were possible political
alternatives in the environment of war. This could be
an opportunity to debunk ethnic chauvinistic ideology
and replace it with a normative framework of civic
engagement and tolerance. In other words, what Serbian
society needs is a ‘systematic effort to master its memories’ (Dimitrijevic, 2008: 20). What a national commission or a similar institution that would systematically
deal with legacies of the past would offer is more than
transitional justice. It would offer ‘transformative justice’, where principal social norms, values, beliefs, and
understandings are shifted so that society can be just and
decent again (Allen, 1999).
appropriate and inappropriate ways to act in politics and
manage conflict is necessary for bringing back a lost sense
of justice in the society that was complicit in massive
human rights abuses (Dimitrijevic, 2006a).
Transitional justice scholars and policymakers should
engage in more substantive, sustained, and deep transitional justice projects beyond counting the number of
individual indictments and length of convictions and sentences. They should promote comprehensive education
reform, such as textbook and curriculum reform that
clearly offers evidence of crimes committed, the nature
of the conflict, and the political environment that made
the atrocities possible. They should promote media professionalization and education in the field of transitional justice and human rights more generally – how to investigate
war crimes, how to write about them, how to present evidence, how to protect the victims. Domestic political leaders can be socialized, persuaded, and rewarded for opening
the black box of the past in a politically responsible manner. New generations of political elites can be educated to
understand and appreciate the importance of separating
right from wrong for the future of their country.
Finally, political elites – domestic and international –
should do all they can to strengthen the political culture
of human rights. Whether or not a state cooperates with
an international tribunal and conducts domestic trials is
not the best indicator of a state’s commitment to dealing
with the past. Only when accounts of the past are wide
open – when people can talk about what happened, how,
and why, who was to blame, and who was indifferent –
will the road to justice truly begin.
Conclusion
Acknowledgments
My goal in this article was twofold. First, I aimed to analytically distinguish three categories of responsibility for
mass atrocity: individual, state, and societal. Second,
I argued that the central focus of transitional justice on
individualizing responsibility is misguided, inadequate,
and counterproductive.
I have advocated a maximalist interpretation of transitional justice, which includes all three types of responsibility and designs proper policy mechanisms to address
them. Expanding the scope of transitional justice to seriously include state and societal culpability is important
for the victims of atrocity, but it is also essential for the
society that produced the perpetrators. It is important for
the health of the nation to distinguish right from wrong.
It is important for the society to accept that human rights
abuses, war crimes, and genocide are wrong. Understanding and acknowledging the difference between
Thanks to Mark Drumbl, Christopher Lebron, Peter
Lindsay, Sanja Pesek, Sabrina Ramet, Doug Rose, Ian
Smith, Harvey Weinstein, Ayse Zarakol, Dana Zartman,
and the editors and reviewers at JPR for helpful comments and suggestions and Shannon Jones and Vanja
Petricevic for research assistance. Earlier versions of this
article were presented at the 2009 American Political Science Association and 2010 International Studies Association meetings. Some of the material in this article
appeared in different form in my book Hijacked Justice:
Dealing with the Past in the Balkans (Ithaca, NY: Cornell
University Press, 2009).
Even if I believe you did not kill with your own hands, I
don’t know how you feel about the people who did.
I don’t know if you encouraged or approved of them.
I don’t know whether you will act like they did in the
future. So I am afraid of you. If you apologize, if you
express regret, I will have less reason to be afraid, and
maybe we can find a way to live in peace together.
(Radzik, 2001: 465)
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former Yugoslavia. Belgrade: UNDP.
JELENA SUBOTIC, b. 1970, PhD in Political
Science (University of Wisconsin-Madison, 2007);
Assistant Professor, Department of Political Science,
Georgia State University (2007– ). Most recent book:
Hijacked Justice: Dealing with the Past in the Balkans
(Cornell University Press, 2009).
Downloaded from jpr.sagepub.com at PENNSYLVANIA STATE UNIV on September 13, 2016