Looking back at it now, the death of Slobodan Miloševic seems of a piece with his life. When he reigned supreme in the Balkans, even those who claimed to know him well—and outside his immediate family circle, they were few—could never say with certainty who the “genuine” Slobodan Miloševic really was or what he stood for. Perhaps even expecting such authenticity is a Western, Judeo-Christian, or at least post-Christian-Freudian conceit, a fetishization of “essence” in the context of a man whose entire career was one of chameleonlike change that reflected the orthodoxy of the day. Baudelaire once wrote of his mistress that her eyes were deep pools of mystery behind which lay . . . nothing. My own sense is that much the same thing can be said about Miloševic. The man who went from Titoist apparatchik to reforming central banker whose views would not have seemed out of place in the Banque de France or the City of London, to Yugoslav patriot struggling to hold the Federation together, to Greater Serbian nationalist, and, finally, to Serb martyr, cannot be said to have had core beliefs—core beliefs other than in himself, that is.
In Laura Silber and Allan Little’s extraordinary BBC documentary, The Death of Yugoslavia, there is a piece of footage that captures Miloševic’s blend of tactical brilliance and his opportunism. It is April 24, 1987. Miloševic has recently become the head of the Serbian Communist Party, and he has come to Kosovo at the behest of his mentor, Ivan Stambolic (then Serbia’s president), to listen to the grievances of Serbs living in the province—to hear about their sufferings at the hands of their Albanian Kosovar neighbors. Unlike, say, Bosnia-Herzegovina, intercommunal relations in Kosovo have always been a zero-sum game. But until this point, Miloševic has never evinced the slightest interest in, let alone sympathy for, Serbian nationalism, even though that current is increasingly powerful in many circles in Belgrade. Indeed, he has come to tamp down the anger of the Kosovo Serbs and to dissuade them from marching to Belgrade in a mass protest that is almost certain to further destabilize Yugoslavia, which has still not righted itself after Marshal Tito’s death seven years earlier.
Miloševic is of two minds. He wants to placate the Serbs but he has not embraced their own particularly extreme version of Serb nationalism. And yet, Greater Serbia is the meeting’s afflatus, not least because the venue is the town of Kosovo Polje, which is not just a suburb of Kosovo’s capital, Pristina, but the site of the defining event in Serb history, the battle of Kosovo Polje, in 1389, when Tsar Lazar, the Serb ruler, made a last, heroic stand against the Ottomans. Or at least so goes the sanguinary fairy tale that many Serbs have always been taught and believed and would have be so, ever since the founding of the First Yugoslavia after World War I. To elaborate an old commonplace, nationalist history is to history what military music is to music.
Miloševic arrives at what is to be a closed meeting with Kosovo Serb notables (though his subsequent speech to them is a matter of record) only to be confronted by thousands of Serb demonstrators who, over the course of the day, have been brawling with Albanian Kosovar counterdemonstrators. The crowd is taut, seething, and Miloševic is visibly nervous. He pauses, staring out at them. Then he speaks, first moderately, then with increasing intensity. As they cheer him, he grows bolder but, above all, more fervent, more nationalist. He speaks less of Yugoslavia, the state he ostensibly serves as Serb party boss, and more of the Serbian and Montenegrin people. Miloševic has crossed the Rubicon. He will not turn back—not in Bosnia, not in Kosovo a decade later, and certainly not when he has been turned over, by the Yugoslav government that comes to power after his own ouster, to the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. But what Little and Silber show with the footage of that day in Kosovo Polje is Miloševic becoming that nationalist icon—the man the Kosovo Serbs will later greet with the shout, “Tsar Lazar, you were unfortunate not to have Slobo on your side!”
But whose side was he on? In his memoirs General Veljko Kadijevic, the Yugoslav defense minister, insists that until Miloševic ordered the Yugoslav People’s Army—Jugoslovenska Narodna Armija (JNA)—to withdraw from non-Serb areas of Croatia and secure only those with Serb majorities (e.g., Eastern Slavonia and the Kninska Krajina) he, Kadijevic, had believed that Miloševic was a Yugoslav patriot, not a Serb nationalist. Later, during talks between various United Nations, European Union, and United States negotiators and Miloševic, it was common to hear talk (off the record, of course!) that the Serb strongman wasn’t a nationalist of any stripe. “Miloševic is in it for Miloševic, nothing more, nothing less,” was the way one senior UN official put it to me in Sarajevo in the spring of 1994. Others were not so certain, pointing to the profound influence his intensely ideological wife, Mirjana Markovic, exercised over him.
There is good evidence for seeing in Miloševic what many have seen in Juan Perón: the ultimate political cynic; certainly Miloševic’s greatest strength was his ability to incarnate the popular mood in Serbia at any given time. In this view, the only reason things went badly for Miloševic (i.e., winding up in The Hague where, had he not died of that heart attack, he would unquestionably have been imprisoned for life) was that he lost his touch. “Look at Croatia and Bosnia,” say those who make the argument for his essential pragmatic cynicism. “When Miloševic saw that the game was up, he pulled back in good order.” And there is much to the argument. Before the Croatian forces, which were advised and at times even led by retired US general officers, built up their capacities and launched their attack on the Kninska Krajina, Miloševic withdrew the regular Serb forces that were stationed there, thus leaving the Krajina Serbs to their fate. As regards the continuing siege of Sarajevo, when it became clear that the patience of the NATO countries (of the United States above all) was wearing thin, Miloševic managed to convince not just the essentially conciliatory and (to my mind, at least) pro-Serb United Nations but the extremely tough-minded and anti-Serb US negotiator, Richard Holbrooke, that peace could only be obtained by “separating”—as the term of art had it at the time—Miloševic from the Bosnian Serbs.
In reality, what this meant was separating the sorcerer from his apprentices. For as Holbrooke (and everyone else willing to look) knew perfectly well, neither the war in Croatia in 1991 nor the Bosnian catastrophe could have begun without Miloševic’s approval or continued without his support. Before I became persona non grata on the Bosnian Serb side of the line in 1994, I witnessed technicians from the JNA servicing the heavy equipment of Bosnian Serb forces around Sarajevo. There was nothing secret about it, just as there was no secret that the JNA officers who led the Bosnian Serb army were still receiving their pay packets from Belgrade, though at their old ranks. To cite only the most celebrated example, General Ratko Mladic, the military commander of the Bosnian Serbs, was a colonel in the JNA. And at key moments in the war, Miloševic authorized the use of elements of the JNA or, in the case of the Srebrenica massacre, of paramilitary police units from Serbia proper. As I say, one did not have to have access to any classified intelligence to know all of this.
Richard Holbrooke’s calculation—and, absent the willingness of the US to intervene directly on behalf of the Bosnian government (instead of serving as its lifeline, which is what the Clinton administration opted for), he was probably right—was that Miloševic somehow had to be induced to orphan the Greater Serbia project he himself had fathered. In return for being allowed to remain in power, and for a de facto partition of Bosnia, this is exactly what Miloševic did in signing the Dayton Peace Agreement that brought the war to an end. But as Kosovo would demonstrate, Miloševic could not leave well enough alone; probably more for domestic political reasons than for anything else—reasons that ranged from the special hold the Kosovo Serbs and their security maintained on the imagination of Serbians and Montenegrins, to Miloševic’s needing to give the feral militias (which he himself had permitted to be raised) something to do and to profit from—he failed to see that the NATO powers were not about to permit him to act as he chose in Kosovo. To put it another way, when the Kosovo crisis came to a boil once more in 1998, the NATO powers were fully prepared to fight the Bosnian war against the Serbs … and did so.
Miloševic had rummaged through his bag of tricks and, at last, come up empty. And, in retrospect at least, there should be nothing surprising about this, for it is an eventuality that seems to befall many great commanders, not to mention many great tyrants. At Waterloo, the Duke of Wellington told his aides that he was sure Napoleon would attack first, that the Corsican’s tactics were too well known to be able to further deceive an adversary. In another, very different and far more squalid historic register, Saddam Hussein’s failure to appreciate that the Bush administration was in earnest about toppling his regime in 2003 was in considerable measure a function of the success he had had earlier in staving off defeat by the Americans. In the case of Miloševic, the “get out of jail free” card he had received from Richard Holbrooke at Dayton was played and squandered in Kosovo. Instead of living out his days as a retired tyrant, as he might well have done, Miloševic became, however belatedly, the poster child for the supposed progress of international justice and accountability, and for the “end to impunity” that had been one of the cardinal demands of the human rights movement at least since the early nineties.
Be careful of what you wish for. Once Miloševic had been spirited from Belgrade to The Hague (under somewhat doubtful legal authority), he mounted an extraordinary campaign of stalling, obfuscation, and speechifying that eventually made even many ardent supporters of the idea of international war crimes tribunals concede that the one trying Miloševic had made a complete shambles of the thing. All they could say in defense of the trial was that perhaps it could serve as an object lesson in what not to do for the new International Criminal Court as it began its deliberations and as it anticipated the arrival of the former Liberian leader, Charles Taylor, who would be its first high-profile defendant.
To less committed observers, it seemed as if, once more, Slobodan Miloševic had succeeded in making a mockery of one of the West’s newest and most cherished pieties—international justice. It was the same old Miloševic conundrum in a new context. It seemed as if the speeches he gave in his own defense, the endless cross-examining of the witnesses called to testify against him, and his oral and written denunciations of the entire proceeding were directed at the public back home in Serbia and Montenegro rather than at the Court itself. In reality, Miloševic’s effect on Serb public opinion lessened the longer his trial went on. Whereas at the beginning of the trial many people in Serbia and Montenegro had watched with rapt attention, by the time Milo-sevic died his trial was compelling to very few. It is not that Miloševic failed to sway the public at home. Rather, it was that few had ever been convinced of his (and, of course, by extension their) guilt. He was preaching to the choir. The problem was that, while the choir had not abjured their faith, their collective mind was increasingly on other things. The survey data seemed to show that they thought Miloševic innocent but that his guilt or innocence was less and less relevant to them.
Where Miloševic was successful, in death as in life, was in confronting and confounding the outside world. Even his death was a challenge to the collective understanding and judgment of his captors. Just as no one—not his intimates, or the European, American, and United Nations envoys who negotiated with him—could ever say with certainty whether he was a convinced Serb nationalist or simply an opportunist who had ridden the snarling tiger of Serb nationalism to power in Belgrade, so, too, are the circumstances of his death likely to remain ambiguous. That Miloševic died of a heart attack seems beyond dispute, but was he a suicide like both his parents and an uncle? Or did he unwittingly poison himself in an attempt to make his health seem more parlous than it really was, as some of his jailers and prosecutors from the ICTY in The Hague have been alleging on background? Or was Miloševic murdered, as some of his followers in Serbia have claimed and will doubtless believe until the end of their days? (Take that, truth and reconciliation!)
It was just like the man, even in his leaving the world, to leave the world guessing. But no guesswork is needed to see that Miloševic’s death dealt to the nascent structures of international justice, as applied to leaders guilty of war crimes and crimes against humanity, a blow far more severe than even he may have understood. The Tribunal’s usually triumphalist chief prosecutor, Carla Del Ponte, said in its immediate aftermath that Miloševic’s death was a “personal defeat” for her, and conceded that the Tribunal was “in a coma.” However, long before his death Miloševic had succeeded in making many impartial observers lose respect for the proceedings. Part of this was the result of boredom, itself the direct result of Miloševic’s successful effort to prolong his trial beyond the most interested spectators’ endurance. But what Del Ponte and her colleagues were loath to admit was that the Tribunal itself has done little to instill confidence even in the most fervent believers in a new era of international justice. In an important sense, Miloševic had been pushing on an open door.
The ICTY was supposed to be the inheritor of the moral as well as the juridical mandate of the Nuremberg war trials. Fifty years after the Holocaust, Nuremberg was supposed to institutionalize within international law and international relations the principle that certain crimes by leaders would not go unpunished. Instead, the Tribunal seems to have inherited Nuremberg’s most problematic and tainting feature—the element of victors’ justice. To be sure, this problem was not as extreme in The Hague in 2005 as it was at Nuremberg in 1946, where Russian judges represented a leadership guilty of many of the same crimes for which Göring, Jodl, Speer, and the others were being tried. Yet we have in Del Ponte’s predecessor as prosecutor, the Canadian jurist Louise Arbour, and in the British former presiding judge, the late Richard May, public servants from two NATO countries that had gone to war against Miloševic’s Serbia. That Arbour and May asserted their objectivity does not make it so. Nor does the fact that Miloševic was unquestionably guilty of the charges brought against him change the fact that if the ICTY’s is not victors’ justice, the term has no meaning, and that if victors’ justice is justice at all, it is certainly not the justice that we in the West pride ourselves on.
This is not to say that an Indian presiding judge or a Mexican prosecutor would have been enough to persuade people in Serbia or, for that matter, in Russia (where Miloševic’s widow has taken refuge), that the Tribunal was legitimate. Although it is worth noting that when the ICTY was first established, its advocates expressed high hopes that it would serve as a vehicle for truth and reconciliation in the Balkans. The idea was to counter the notion prevalent in Serbia and Montenegro that Miloševic and in fact the Serbian people collectively were no more guilty for the wars in Croatia, Bosnia, and Kosovo than the Croats, Bosnians, and Kosovars themselves. Of course, the ICTY’s mandate was to try all war criminals, Serb, Croat, Bosnian, and Kosovar alike. But in practice, its success or failure was almost universally acknowledged to depend on bringing Miloševic’s trial to a successful conclusion and capturing and trying General Mladic and Radovan Karadzic, the Bosnian Serb political leader.
Even if Mladic and Karadzic are brought to account, Miloševic’s death accomplished what all his delaying tactics and courtroom antics could never do—cement the perception of the ICTY’s failure. In retrospect, it is obvious that the idea so fervently promoted by advocates for the ICTY—that convicting Miloševic would somehow win over Serbian hearts and minds—was always the purest wishful thinking. But this is not to say that victors’ justice can never succeed. It has, at many times and in many places, from post-Hitlerian Germany to postapartheid South Africa. But what it cannot do is succeed in a political vacuum or when the outcome on the battlefield has been indecisive. By now the principal reason Germans came to accept the burden of Nuremberg and South Africans (in the main), the conclusions of their Truth and Reconciliation Commission, seems clear: decisive defeat, whether military or political. And even in Germany, it took the student rebellion of May ’68 to lay the last ghosts of Hitler nostalgia to rest, while in South Africa, the Truth and Reconciliation Commission may embody the canonical version of apartheid and the struggle against it, but tensions remain high, as the trials of Winnie Mandela and Jacob Zuma have demonstrated. With all these limitations, however, victors’ justice has been successfully institutionalized in those countries. But the lesson remains clear: if there is to be effective victors’ justice (which, human nature being what it is, is probably the best we can hope for), there has to be a victor.
And in Serbia, this is emphatically not the case (no more than it was at the end of World War II in Austria, which was allowed to style itself Nazi Germany’s “first victim” and thus escape the obligation to confront its own Nazi past). Even in Bosnia, nationalism burns almost as fiercely in the Serb areas as it ever did, and certainly few ordinary Serbs, let alone the former leadership, feel any remorse for Srebrenica or the siege of Sarajevo. In Serbia proper, the current government, while not extreme itself, depends on the support of Miloševic’s Socialist Party in order to retain power. Under those circumstances, it is almost impossible to imagine that had Miloševic lived and been convicted, the Tribunal’s judgment would have seemed legitimate to many Serbs. With his death, one more name has been added to the martyrology of extreme Serb nationalism—a victim, in this account, of a kangaroo court whose pretensions of delivering justice ring hollow.
For now, Del Ponte and her colleagues are pinning their hopes for the ICTY’s continued viability on the capture of the Bosnian Serb leaders Mladic and Karadzic. It is, of course, possible that they will be apprehended by NATO or turned over by the Serbian authorities, who are coming to see that the possibility of Serbia’s entry into the European Union is dependent on their rendition. Neither Karadzic nor Mladic can be that difficult to find. Both men, after all, are very much in circulation; Dr. Karadzic, an occasional poet, has even published a new volume of verse. But while their arrest would doubtless be celebrated in The Hague and be brandished by Del Ponte and her colleagues as having given the Tribunal a new lease on life, the reality is that these men, however detestable, were but minions, puppets. They could have done nothing without support from Belgrade, as evidenced by the collapse of the Bosnian Serb secessionist project as soon as Belgrade withdrew its support. No, the puppeteer was Slobodan Miloševic and he is beyond the reach of justice, if that is what the ICTY was ever really capable of delivering.
In any case, to what extent war crimes tribunals succeed as either deterrents or historical educators remains unclear. By the time people are willing to commit genocide, they are rarely thinking about whether or not, one day, they may end up in The Hague. Genocides are usually the product of fear. It was fear that drove the Rwandan Hutus to kill their Tutsi neighbors, and fear that drove the Serbs to once again take refuge in the fever swamps of extreme nationalism. When such fear prevails, rational calculation, including the rational calculation of future risk, is simply beyond reach. And the occasional prosecution of a Charles Taylor no more prevents war crimes than the occasional prosecution of a mugger prevents street crimes. If anything, after leaders have committed war crimes, the fear of prosecution may negatively influence their willingness to make peace, as recent negotiations over a settlement in the Democratic Republic of the Congo have illustrated.
Absent a world government that could efficiently punish war criminals and either prevent genocide from occurring or at least intervene early on, the best that can be hoped for is the occasional war crimes trial of a leader who has no friends on the United Nations Security Council. This is not to say that the nascent International Criminal Court is a kangaroo court, but it is an institution by which the administration of justice will be partial, and political. Like Slobodan Miloševic before him, Charles Taylor can be tried because he no longer has powerful friends. (It was Taylor’s losing the protection of President Obasanjo of Nigeria that made his transfer possible.) For the powerful, there will always be another standard, and it is unimaginable that, for example, the commander of Russian forces in Chechnya will ever be brought before an international court. Only idealists and sentimentalists should be surprised by such hypocrisy. In fact, we have not moved so very far from the world John Gay described in The Beggar’s Opera, which has a lot to say about justice for the strong and justice for the weak.
But even if international justice could be administered, well, more justly, there is little likelihood that the problem of victors’ justice can ever be overcome. Does anyone really think that Saddam Hussein is getting a fair trial? Is he guilty? Of course. But he is being railroaded. The expectations for war crimes tribunals are always inflated. The sad truth is that such courts will not heal the wounds of the Balkans, let alone deter future war criminals—just look to events in Darfur and the Middle East. Rather, truth and reconciliation are attained by social transformation and, above all, time. When he died, Slobodan Miloševic was already a figure from the Balkan past, largely irrelevant to its future. That may not be justice according to courts of law, but, doubtless for better and for worse, it is the justice of history.