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Chapter I: Theoretical Framework, Scope of the Research, and Sources UvA-DARE (Digital Academic Repository) The unfinished trial of Slobodan Milošević: Justice lost, history told Vrkić, N. Publication date 2015 Document Version Final published version Link to publication Citation for published version (APA): Vrkić, N. (2015). The unfinished trial of Slobodan Milošević: Justice lost, history told. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:02 Oct 2021 We waste a lot of time waiting for spectacular new material… We haven’t sat down and taken a very close look at the material we have. Bettina Stagneth, author of Eichmann Before Jerusalem, interview, New York Times, October 2014 Chapter I: Theoretical Framework, Scope of the Research, and Sources Why were expectations so high for the Milošević trial? Why was disappointment about its premature end so widespread? What did victims and the public hope for from the judgement or the verdict? Did they wish to see Milošević found guilty and sentenced to a long prison term? Would the text of a judgement have provided answers as to why mass atrocities had occurred, and at the instigation of whom? And most importantly, can the record of his unfinished trial meet any of those expectations?112 Some of these answers can be found in transitional justice literature on mass atrocities trials; trials which, inter alia, are meant to adjudicate individual responsibility and establish the truth about controversial events from the past.113 International criminal trials represent one way of addressing the commission of crimes by past regimes, and they have been reintroduced as a transitional justice mechanism since the 1990s. But debate about the purpose of trials that deal with mass atrocities extends back to the Nuremberg and Tokyo Tribunals and is dominated by two opposing views – one, that mass atrocities trials should fulfil the legal purpose of delivering justice and meting out punishment, and another that stresses the importance of the extralegal objectives of mass atrocities trials in establishing truth and documenting history.114 112 Some of these questions have been dealt with in: Nena Tromp: “Understanding the Milošević Case: Legacy of an Unfinished Trial,” in The Genocide Convention: The Legacy of 60 Years, eds., H.G. van der Wilt, J. Vervliet, G.K. Sluiter, J.Th.M. Houwink ten Cate (Leiden: Martinus Nijhoff, 2012), 27-39. 113 Teitel, Transitional Justice, 72. 114 For discussion on this debate in general, see: Bilsky, Transformative Justice; Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, CT: Yale University Press, 2001); Michael R. Marrus, “History and the Holocaust in the Courtroom,” in Lessons and Legacies, ed., Ronald M. Smelser, vol. 5, The Holocaust and Justice (Evanston, IL: Northwestern University Press, 2002), 215–239; Osiel, Mass Atrocities; Gerry Simpson, “Didactic and Dissident Histories in War Crimes Trials;” and Teitel, Transitional Justice. On the view that trials are meant to deliver punishment, Hannah Arendt quotes Nuremberg Executive Trial Counsel Robert Storey that “the purpose of a trial is to render justice, to mete out punishment, and nothing else,” in Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 1963), 233. Also see: Ian Buruma, Wages of Guilt: Memories of War in Germany and Japan (Plume: 1995), in which Buruma wrote: 25 Scholar Ruti Teitel connects transitional justice with five conceptions of justice: criminal justice, historical justice, reparatory justice, administrative justice, and constitutional justice.115 Teitel characterises transitions as times following a regime change in which ‘successor trials’ are commonly used as a primary means of establishing a measure of historical justice. She argues that the pursuit of historical truth is embedded in a framework of accountability and in the pursuit of justice, to which criminal trials contribute.116 In defining historical justice, Teitel applies the Enlightenment view, in which history is considered teacher and judge and historical truth is equated with justice.117 Yet the assumption that ‘truth’ and ‘history’ are one and the same is not universally accepted. Teitel cautions that when history takes its “interpretative turn” there is no single, clear, and determinate understanding or lesson to draw from the past. Instead, one must recognise the degree to which historical understanding depends on political and social contingencies.118 Lawrence Douglas qualifies all Holocaust trials as “orchestrations designed to show the world the facts of astonishing crime, but also to demonstrate the power of law to reintroduce order into the space evacuated of legal and moral sense.”119 He has introduced the term ‘didactic legality’ and argues that the trials of the Holocaust blurred the very boundary between the legal and extralegal.120 Douglas finds that insisting on the legal aspect of trials is a “needlessly restrictive vision of the trial as legal form.”121 While recognising that the primary responsibility of a criminal trial is to resolve questions of guilt in a procedurally fair manner, Douglas advocates integration of the legal and extralegal purposes of mass atrocities trials.122 Other proponents of recognising the extralegal value of mass atrocities trials stress that criminal trials must be conducted with a pedagogical purpose in mind. Mark Osiel asserts that, in times of democratic transition, the need for a public reckoning with the question of how horrific events of recent history could have happened is more important for democratisation than criminal law’s “When the court of law is used for history lessons, then the risk of show trials cannot be far off.” On the view that trials have extralegal purposes, see: Marrus, “History and the Holocaust,” 215–16. 115 Teitel, Transitional Justice, 70. 116 Ibid., 73. 117 Ibid. 118 Ibid. 119 Douglas, The Memory of Judgment, 3. 120 Ibid. 121 Ibid., 2. 122 Ibid., 3. 26 more traditional objectives. In his opinion, effective mass atrocities trials stimulate public discussion in ways that foster toleration, moderation, and civil respect.123 Leora Bilsky warns against compartmentalising the discussion into the legal versus the historical, though. In her view, this polarisation distracts from the fact that transformative trials – a term she introduced – should “fulfil an essential function in a democratic society by exposing the hegemonic narrative of identity to critical consideration.”124 In other words, the legal and the historical do not compete with, but rather complement, each other. A study by Jelena Subotić, aptly entitled Hijacked Justice, examines the fact that elites may not be motivated to agree to transitional justice mechanisms because they wish to deal with the past. Instead, they may use transitional justice for purposes other than achieving justice and establishing truth. Subotić identified three political aims of state-level elites in Serbia that inspired them to meet the state’s obligation to cooperate with the ICTY: to get rid of domestic political opponents, to obtain international financial aid, and to gain admission to the European Union. Ignoring the true purpose of the ICTY as an institutionalised legal response to mass atrocities, political elites in Serbia contributed to its politicisation, undermining the primary objectives of transitional justice processes to render justice and ascertain the truth. Subotić argues that ‘hijacking justice’ in this way can backfire because it can “foster domestic backlash, deepen political instability, or create politicised versions of history.”125 The Courtroom Narrative: “Two Truths” about the Conflict Any mass atrocities trial record inevitably reflects complex historical interpretations of the period with which it deals. Each side in any conflict will have its own theory of how the conflict turned violent and who started it; and there is no mechanism to indicate which of the two competing narratives produced in a courtroom will prevail outside of it. The nature of the legal system applied at international criminal courts is such that the Prosecution and Defence are likely to present competing narratives, or two truths, about a conflict.126 Depending on how many 123 Osiel, Mass Atrocities, 2. 124 Bilsky, Transformative Justice, 7. 125 Jelena Subotić, Hijacked Justice (Ithaca, NY: Cornell University Press, 2009). 126 As noted in the Introduction, international law has also incorporated elements of the inquisitorial system to become a unique hybrid system. 27 persons are on trial, sometimes there are even more than two versions of events presented, and these narratives produced in the courtroom persist regardless of the trial judgement.127 Kirchheimer described the polarised narratives that can be introduced in the courtroom as a gamble. In some ways, he asserted, the risk of making every moment of traumatic history subject to criminal law is a “double wager” – not only might a defendant prevail, but even if a trial ends in conviction it may fail in its didactic aim. He called this an “irreducible risk” and the inevitable sine qua non of a just trial.128 In the debate over the prevailing narrative of the Holocaust, for instance, Douglas acknowledges that the law succeeded at times but, at others, lost this wager.
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