Guilt, Responsibility, and Denial - Eric Gordy Pennsylvania Studies in Human Rights

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asked did not feel that they knew all they wanted to know, and that they did not trust all the sources that were regularly available to them. Additional material from literary and media ethnography seemed to suggest that the whole process of learning about the past was burdened with fear and distrust, and slowed by the silence (or negative engagement) of institutions people did tend to trust. What all this suggests is that processes could have gone farther, not just with greater engagement on the part of institutions but also with a more sustained effort on the part of tribunals, courts, investigators, and activists to communicate with the public. One factor that probably limited the entire process was the fact that both the advocates and opponents of transitional justice carried out their activity in a way that was confined to small groups. This could be a reason that there was a small number of “moments” to consider: it was only big news that allowed the discussion to break out of closed circles. This is a lesson that may have been partly learned, as post-ICTY transitional justice efforts have sought to separate the production of historical accounts from the production of verdicts, and to cultivate the involvement of educational, religious, and cultural institutions. The magisterial distance of law from the Serbian public did not encourage popular engagement.

      Finally, a brief note about the structure of the book. The narrative shifts as it progresses from a narrower scope to a broader one, and from what might be considered technical and legal questions to some wider philosophical and moral issues. I think that this is faithful to the direction of the story as it developed over time. The chapters are arranged to alternate between detailed empirical elaboration of the “moments” that are examined and thematic exploration of questions and themes that are provoked by the “moments.” Two of these thematic chapters are mostly informative in character, reporting in one instance on early post-2000 public opinion research in Serbia and offering an overview of the major international and domestic transitional justice initiatives. The third is a bit more ambitious (and longer!), tracing varieties and refinements of discourses of denial and responsibility. While the empirical and thematic chapters could be read separately, the ordering of the chapters is meant to lead readers through the logic that brought the study from apparently clear and relatively simple moral questions to greater complexity and uncertainty, and to an insistence on the importance of the cultural and social context.

       Chapter 1

      Guilt and Responsibility: Problems, History, and Law

      The International Criminal Tribunal for the former Yugoslavia (ICTY) issued its final indictments in 2004, and these were confirmed in 2005.1 The remainder of the Tribunal’s activity consists in completing cases that have already begun and preparing for cases that have yet to begin. Prosecution is still being prepared against Ratko Mladić and Goran Hadžić, who were apprehended in 2011. In November 2008 the president and prosecutor of the Tribunal anticipated, provisionally, that trials should be completed in 2010 and appeals completed in 2011.2 Clearly this did not happen, and the ICTY completion strategy is likely to be revised to 2015 or possibly later.

      By some accounts the success or failure of ICTY will be measured in legal terms: did it adhere to fair procedure, generate evidence of unassailable quality, and establish precedents that offer a foundation for the future application of international humanitarian law? By some accounts its success or failure will be evaluated numerically: were enough people charged with crimes, did a sufficient proportion of crimes result in charges, and were indictments fairly distributed among members all the groups that participated in the wars? By some accounts its success or failure will be assessed politically: did it encourage the promotion of peace, the development of democratic states, and the elimination of conditions that could lead to large-scale violation of international humanitarian law in the future?

      It will be far more difficult to evaluate ICTY in social or (to use a pretentious word) moral terms. Such an evaluation would certainly require multiple levels of analysis. Nonetheless no assessment of the effort would be complete without at least attempting such an analysis. The Security Council resolution that established the Tribunal suggests such a standard:

      Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of “ethnic cleansing,” including for the acquisition and the holding of territory,

      Determining that this situation continues to constitute a threat to international peace and security,

      Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them,

      Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace,

      Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed.3

      By its declared goals, then, ICTY ought to restore and maintain peace and security while also halting crimes and effectively redressing them. The standards for evaluation therefore have to be broader than technically legal or strategically political criteria. They have to take into account what would constitute maintaining peace and security and redressing crimes, while also considering how the recurrence of crimes can be prevented. To assess this legal institution we have to ask social questions.

      The principal social question I ask is how the conflicts and the crimes committed in the course of them came to be understood by people in Serbia. This study examines the legacy that confronted the country when Slobodan Milošević was compelled to leave power in October 2000, the institutional and informal efforts to create an account of this legacy, and asks how ICTY and related institutions interacted with other forces in the process of building a set of public memories (some of which were widely shared, while some were confined to relatively well-defined groups).

      The field of public memory is diverse and broad. Considerable variation exists in just how “public” elements of public memory are. No study of public memory can hope to be either final or exhaustive: as people’s perceptions and conditions change, public memory changes with them. This study traces the development of public memory: how it changes over time, how far change reaches, and what might account for change.

      I am particularly interested in answers to questions of guilt and responsibility, emphasizing how people answered two questions in particular: (1) Who should be blamed for all the misery that took place? (2) Who is obliged to find ways of repairing damage where necessary, rebuilding relationships where demanded, and assuring a peaceful future where possible?

       Framing the Question

      The issue of guilt and responsibility in contemporary Serbia involves generating persuasive historical accounts, which are likely to be generally accepted, that establish what happened in the recent past and which individuals, institutions, or forces are responsible. The wars of succession that followed the dissolution of Yugoslavia in 1991 were a source of trauma for residents of the region and also a topic of global political controversy.4 Both the trauma and the controversy derive from the same source: the commission of war crimes,5 crimes against humanity,6 and genocide,7 in the course of the wars. Consequently the challenge of generating historical accounts carries a political burden. Historical accounts are expected to help in determining who is guilty, how social responsibility is to be distributed, and how peace and reconciliation can be developed. Neighboring countries and international institutions take an interest in this process—they will measure the progress of the country according to how far public opinion in Serbia is willing to accommodate the grievances of its recent enemies and break with its recent past.8

      This

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