The ICTY and re-writing history

I have been made aware of a recent lecture with the title “Legal Process as a Tool to Rewrite History”by Sir Geoffrey Nice, who was a prosecutor in the trial against Slobodan Milosevic. 

The lecture, a transcript of which is available on the internet, contained an interesting discussion about the limitations on the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) ability to provide a balanced and complete historical record of the wars in the former Yugoslavia. In particular, it notes that ICTY’s ability to fully determine Serbia’s involvement in the Bosnian war was constrained by not being able to fully access Supreme Defence Council documents in Belgrade. Also of interest is Sir Geoffrey’s observation that the leaking in 2003 of ICTY documents constituting an investigation into allegations of Kosovo Albanian leaders’ involvement in “organ harvesting” has helped to “taint all Kosovars.”

Another limitation of the ICTY which is not discussed in the lecture but strikes me as important is that its contribution to the historical record largely depends on whether potential indictees are available to the court or not. Many believe that the former Croatian president Franjo Tudjman should have been put on trial for war crimes against Serbs in Croatia and against Muslims in Bosnia. Had he lived for another 10 years, this may well have happened. Such a trial would probably have helped to cement the conventional wisdom that the Muslim-Croat civil war of 1993 to 1994 was caused by Croatian interference. General Gotovina’s acquittal last year following an appeal against his conviction for war crimes against Serbs in Croatia in 1995 seems to me to have greatly enhanced Croatia’s international reputation. The effect would have been much greater had Tudjman been acquitted of the same crimes. Whether it intends to or not, the ICTY plays a central role in writing the history of the Balkan wars of the 1990s.

Sir Geoffrey appears to believe that this is not the ICTY’s intention:

“We must recall that all judges at all these courts do say that they do not write history in their judgments - and they don’t,” he says.

To support his claim he quotes the summary of the judgement in the Kupreskic case which concerned Croat crimes against Muslims in central Bosnia in 1993:

‘the primary task of this Trial Chamber was not to construct a historical record of modern human horrors in Bosnia-Herzegovina. The principal duty of our Trial Chamber was simply to decide whether the six defendants standing trial were guilty of partaking in this persecutory violence or whether they were instead extraneous to it and hence, not guilty."

Note the use of the words “primary” and “principal” in this quotation, which leave open the possibility that constructing a historical record of the Bosnian war is at least a secondary task of the ICTY. Other statements, such as the following from the judgement against Dario Kordic, another Bosnian Croat convicted for crimes against Muslims in central Bosnia, suggest that it is very much in the business of writing history:

“ [Franjo Tudjman] harboured territorial ambitions in respect of Bosnia and Herzegovina, and that was part of his dream of a Greater Croatia, including Western Herzegovina and Central Bosnia.”

The ICTY’s desire to control the narrative of the 1990s Balkan wars was also strongly suggested by a letter to the Swedish state broadcaster in 2011, which I discussed in a previous post: http://rgallivan.blogspot.co.uk/2012/04/combating-revisionism-controlling-past.html. The letter seeks to undermine various assertions made in a documentary about the Srebrenica massacre, even when these assertions do not contradict the ICTY's judgment that genocide occured there in 1995. This has the effect of stifling legitimate debate about the nature of the Bosnian war.

The ICTY has uncovered many important facts about the conflicts in the former Yugoslavia, which is to be welcomed. Its tendency to tell us how to interpret these facts is not.

A mild defence of Belgium

In Belgium, First World War memorials bear rousing inscriptions such as “POUR LA PATRIE” AND “GESNEUVELD VOOR HET VADERLAND”, but seem reluctant to give this “Patrie” or “Vaderland” a name.

Is this because Belgium is a completely artificial state with more in common with Bosnia, a country that struggles to command the loyalty of most of its population, than with Switzerland, which grew organically into a state with a strong identity? Opponents of European integration are particularly keen proponents of this view, seeing Belgium as a kind of prototype for the grander project of breaking down linguistic barriers across the continent to create a European superstate.

But those who wish to defend national identity against the anti-historical cultural vandalism of the European Union should perhaps be wary of denigrating Belgium, which in Britain at least, is sneeringly dismissed as both artificial and boring. Opponents of Belgium’s existence are fond of pointing out that it was created in 1831 by foreigners against the wishes of most of its inhabitants, in contrast to Switzerland’s much more gradual and consensual emergence as an independent state, a process that began in 1291.

But the similarities between Belgium and Switzerland could be much more important than the very different ways in which they came into being.

Perhaps the most important similarity is that, while both countries are made up of populations that speak the same languages as inhabitants of neighbouring countries, the Swiss and the Belgians do not see these countries as their home nations. The inhabitants of Geneva and Liege are French-speaking, but they are no more French than the citizens of Swansea and Glasgow are English. People from Antwerp speak Dutch and people from Zurich speak German, but they are not Dutch or German. In this regard, Belgium has much more in common with Switzerland than with Bosnia, where Serbs look to Serbia as their homeland and Croats to Croatia.

So the suggestion, made by some who see Belgium as an artificial state, that it should split into two, with Flanders joining the Netherlands and Wallonia France, may be problematic. It is difficult to see how this could be achieved without trampling over the Flemings’ and Walloons’ distinct identities, which have been shaped by hundreds of years of separation from their supposed mother countries. Flying the French tricolour from town halls in Liege and Charleroi in Wallonia and the Dutch flag in Antwerp and Ostend in Flanders would in many ways be just as artificial as the imposition of the EU flag.

Maybe Flanders and Wallonia could respectively join the Netherlands and France in the same way England and Scotland came together to form the United Kingdom in 1707? But it seems highly questionable that either Flanders and the Netherlands or Wallonia and France could emulate this unique coming together of nations. Would the highly-centralised French Republic, with its population of more than 60 million people, be willing to undergo the sweeping constitutional changes needed to create a federation with a territory of less than three-and-a-half million inhabitants? Conversely, would the 16 million Dutch welcome a merger with a new federal unit containing six million people? This seems doubtful.

Paradoxically, a union between Flanders and Wallonia may be the best way for these territories to preserve their distinct identities precisely because of the insurmountable differences between them. Flanders and Wallonia could easily be swallowed up by the Netherlands and France, but within Belgium, they will always be protected by the linguistic division between them.