Škulić: Although in criminal law culpability is individual, certain moral and other repercussions of a verdict against former high state officials inevitably hurts the whole nation.
Popović: Why? Karadžić is not a Serbian state official. Karadžić is not an official of any state (RS not being a state). Even if he were, there is no national interest (as the author implies) that would be served by a state official escaping responsibility for a crime (a war crime in this case) that he might have committed. On the contrary, the Serbian nation is ‘hurt’ precisely by the fact that many state officials steeped in all kinds of crime have escaped responsibility and remain unpunished. The position that we must ‘defend our own’ even when this involves criminals, i.e. that their indictment would ‘hurt’, is a typically nationalist stance. This stance sublimates all the pernicious aspects of this ideology, which proclaims ethnic identity as a human being’s basic and dominant term of reference, and in accordance with it relativises all other differences – e.g. between the killers and their victims, the guilty and the innocent. It is precisely this position that evokes the principle of collective responsibility.
What can one expect to happen at Dr Karadžić’s trial, and what kind of defence would be the most suitable?
‘The most suitable’ is an odd choice of words by a professor of law. Suitable for what? As will become evident, ‘the most suitable’ here means a defence that would result in the accused being set free, not because he might not be guilty, but because a guilty verdict would allegedly ‘hurt the nation’.
Karadžić insists on defending himself, but the Hague prosecution has already announced that it will insist on his having a defence counsel. The prosecution believes that the complexity of the case demands a professional defence. Is this valid? The tribunal’s statute guarantees a right of choice to the accused, who is free to decide whether to defend himself or engage a counsel. The tribunal has tried to interpret this rule more loosely, but this is not an accurate interpretation. The argument that most criminal cases (as is common in much of Europe) prescribe professional defence in certain circumstances does not apply here, because the court’s statute itself does not contain this rule. The fact that Radovan Karadžić is not a lawyer may be used as an additional argument by the prosecution. But this is not a sufficiently valid reason, on the one hand because obligatory professional defence is not in the statute, on the other because Radovan Karadžić could be aided in his own defence by a team of experts, while he – being an intelligent and eloquent man – should be able easily to master the technique of cross-examination and learn the required procedural rules, which in any case most European lawyers do not know, because the judicial procedure is not typical for continental Europe.
The professor is right here: the tribunal statute does not make professional defence obligatory. It remains quite unclear, however, what the purpose of these observations by Prof. Š kulić is within the framework of his text. What ‘moral and other repercussions’ would ‘hurt the whole nation’, if his (‘intelligent and eloquent’) client was nevertheless assigned a defence counsel? For this is allegedly the only reason why Prof. Š kulić is voluntarily involving himself with Karadžić’s defence.
Though Karadžić is charged with grave crimes, the defence can make the prosecution’s life miserable.
Škulić reveals here his own motive: he would like to help Karadžić ‘make the prosecution’s life miserable’ (Koštunica would have said ‘cause damage’). The professor knows that Karadžić is ‘charged with grave crimes’ (and that he will be condemned for them, whence the connective ‘though’), but is ready to advise his ‘client’ on how to ‘make the prosecution’s life miserable’, thus in his opinion saving the nation from moral and other repercussions. One should also note here Š kulić’s implied belief that the prosecution is not motivated by a desire to establish the truth, but is instead exclusively guided by an evil intention to produce a guilty verdict at all costs.
Speaking of genocide as the gravest aspect of the accusation, the focus will be on Srebrenica. Although highly serious expert arguments show that, while serious crimes were committed in Srebrenica, they did not amount to genocide, it is clear that the Tribunal will not concern itself much with this legal qualification, but will rely instead on the verdict in General Krstić’s case and routinely treat this case as one of incontestable genocide.
What are these ‘serious expert arguments’ that no genocide was committed in Srebrenica? They do not exist. We have the verdict not only of the Hague Tribunal, but also of the International Court of Justice. Prof. Š kulić makes no mention of the latter. Quite apart from that, it is expected that the charge of genocide againt Karadžić will include not only the case of Srebrenica, but also a series of other localities such as Bijeljina, Bratunac, Bosanski Š amac, Brčko, Doboj, Foča, Ilijaš, Ključ, Kotor Varoš, Novi Grad, Prijedor, Rogatica, Sanski Most, Višegrad, Vlasenica, Zavidovići and Zvornik. The professor has not read his client’s charge sheet.
The defence can nevertheless question this and insist in particular on establishing the responsibility of the UN and of the Dutch battalion, because Srebrenica was a safe area and was never demilitarised. And who, after all, killed several thousand Serbs in Bratunac and the surrounding area? One can question the number of those who died in Srebrenica. Serious evidence calls the official ‘over eight thousand’ into question, given that nowhere near such a number of dead bodies have been found, and there are indications too that those who died in previous years of the war were added to the number.
This shameless argument is often repeated by the nationalist public. We did kill them, but we did so because you did not stop us. Who is responsible for Đinđić’s murder? Poor security. What else could Ulemek and co. do but kill a prime minister who was so poorly guarded! The Dutch government fell because of its negligence, but in Š kulić’s view Karadžić and Mladić should share responsibility with the Netherlands and the UN, as if the latter two had intended to aid genocide. One should also bear in mind that the Dutch were only morally and politically responsible, because their soldiers had been previously disarmed by Mladić, so were in practice unable to do much. So we killed, and the Dutch were ‘guilty’ for allowing us to disarm them beforehand, which is why they were subsequently unable to prevent us from killing. An unbelievably cynical construction.
Karadžić could argue in his defence that he himself was not involved in this case, which was an example of an ‘excess’ committed by the military; but this line of defence is not the best one, since his high official status implies his ‘command responsibility’.
This is verging on despair. The defendant himself recognises that this line of defence is ‘not the best one’ (it is in fact quite out of the question) because of his command responsibility, but Prof. Š kulić is evidently unaware that there are witnesses (like Deronjić, for example) who have spoken clearly and at some length on Karadžić’s personal involvement in the case of Srebrenica. These facts notwithstanding, the professor concludes that Karadžić can nevertheless defend himself on the grounds that ‘he himself was not involved in this case’. It is possible, of course, for the defendant to mount a foolish defence. Maybe this is precisely why he should be given a professional counsel.
The defence should reveal the mechanism of the emergence of a state of war in Bosnia-Herzegovina. It was clear to all reasonable men at the start of the secessionism in SFRJ that Bosnia-Herzegovina could not survive as an independent state without the agreement of all its constituent nations, and the Serbs were against it. Bosnia-Herzegovina nevertheless seceded unconstitutionally, and leading world players promptly recognised this act. The defence must explain that their recognition acted like a spark in a barrel of gunpowder. What role was played by ‘peacemakers’, such as those who persuaded Izetbegović to withdraw his signature on the Cutileiro plan? It is necessary to explain also that the SDS, as the leading national party of the Serbs in Bosnia-Herzegovina, was the last to emerge, well after the formation of the SDA and the HDZ .
This is an old story and the greatest lie of Milošević’s propaganda, which has survived to this day and acts as the prop for many other lies. It was Milošević who destroyed Yugoslavia, while Serbia was the first republic to secede from SFRJ, intending with the aid of the JNA to restructure the former SFRJ and create a smaller Yugoslavia that would be dominated by Milošević’s Serbia. With the constitution of 1990, adopted a year before the proclamation of independence by Slovenia and Croatia, Serbia proclaimed itself an independent and sovereign state, which was no longer obliged to respect the federal constitution and legislature and which assumed all key competencies of the former federal state: defence, international relations, the central bank. In the following spring, also before the proclamation of independence by Croatia and Slovenia, Serbia adopted a whole number of laws supplanting the federal ones.* From what was Bosnia-Herzegovina trying to secede?
One should produce evidence about the formation of the so-called Patriotic League, the Green Berets and other paramilitary formations, and about the prepared plans for a ‘night of the long knives’ and a ‘solution of the Serb question’ in Bosnia-Herzegovina. The trigger that set off armed conflict was the murder of the bridegroom’s companion at Bašćaršija, committed by a notorious criminal later hailed as a national hero. There are those in Bosnia-Herzegovina who cannot forgive the Serbs for this time being more cautious, united and quicker off the mark, having experienced a pogrom in the Second World War.
This is further nonsense from the nationalist folklore. It has been established beyond all doubt that Bosnia-Herzegovina was quite unprepared for war, and that the armed conflict was sought and initiated by the stronger party, the party which sought to redraw the republican borders (Milošević: ‘borders are drawn by those who are stronger’). All this was prepared well in advance, as one can learn from the memoirs of Borisav Jović and Veljko Kadijević. The bluster about ‘the murder of the bridegroom’s companion’ is quite childish. What does Š kulić’s remark that the Serbs of Bosnia-Herzegovina were ‘this time more cautious, united and quicker off the mark, having experienced a pogrom in the Second World War’ mean? It means that the Serbs (Milošević’s propaganda) ‘foresaw’ a new pogrom even before it had begun, and rose up in arms to prevent it. This is the theory of ‘preventive war’ which Hitler used in the case of the Sudetenland: I will not wait for you to provide me with an excuse, but will attack you ‘preventively’.
The defence will be able to bring up the officially established number of those who died in the civil war in Bosnia-Herzegovina, because phantom numbers continue to be quoted. It must be made clear that the Muslims were not the only or exclusive victims. The fact that they suffered most is due to the fact that they fought a war on several fronts, with the Serbs as well as at one time also with the Croats, and even killed each other in Cazinska Krajina.
On how many fronts did the Serbs fight? As for the story about ‘civil war’, one is once more directed to Jović and Kadijević. Serbia always started the wars of the 1990s in the same way: with a media-induced hysteria of fear, prompting rebellion among the Serb population and arming them, after which the Serbian army, paramilitaries and the state security service (UDB) would take action to ‘protect the Serbs wherever they live’ – from attempts to suppress their armed rebellion directed at violent alteration of the republican borders.
Although Karadžić is charged as an individual, his historical role during the civil war in Bosnia-Herzegovina and the presidential post he occupied will undoubtedly serve to make many people experience the trial also as a kind of trial against Republika Srpska. This must not be permitted. The defence must seek to destroy the established prejudice about ‘collective Serb responsibility’, and in particular must carefully and stubbornly explain the historical context of the civil war in Bosnia-Herzegovina.
This will be very difficult. Republika Srpska would not have come into being without ethnic cleansing and genocide, which were deliberately used to (provisionally?) create the entity’s ethnic homogeneity.
It is important to explain also the case of the blockade of Sarajevo, which undoubtedly led to much suffering of civilians, but which happened, it is argued, for purely military reasons and with the aim of preventing the large Muslim armed bands from linking up and acting offensively. It must be explained that besieged Sarajevo was also a kind of a concentration camp for Serb civilians. Several thousand of them were murdered, and the graves of many remain unmarked. Paramilitary formations and organised criminal bands roamed through the city. There were also many private prisons where Serb women were kept against their will. The defence cannot, of course, base itself solely on the assertion that ‘others too have committed crimes’, because this is not a justification; but the above is nevertheless a relevant fact. Although guilt in criminal law is individual, certain moral and other repercussions of sentences passed on former high state officials inevitably also hurt the whole nation.
Skulić’s unbelievable euphemisms used to describe the siege and shelling of Sarajevo, and the systematic targeting of civilians passing along Sarajevo streets, are quite interesting. He calls it a ‘blockade’! A blockade instituted for ‘purely military reasons and with the aim of preventing the large [?!] Muslim armed bands from linking up and acting offensively’. This is why the citizens of Sarajevo had to spend four years without water and electricity, why several million shells fell on Sarajevo, and why the snipers amused themselves for years by shooting civilians!
The defence which Prof. Škulić advocates would amount to a serious self-indictment; it would display a shamelessly frivolous attitude shown by the accused towards the terrible consequences of his actions. Or, as one might put it legally, it would illustrate a psychopathic, cynical and emotionally indifferent ‘attitude on the part of the accused towards his act’. This is precisely what Prof. Š kulić and part of Serbian public opinion recommends to Dr Dabić, in order to protect the nation from a moral or any other obligation.
* It is practically unknown in Serbia, including even in professional circles, that Serbia made itself an independent state – according to its constitution of 28 September 1990 – a year before Slovenia and Croatia proclaimed their own independence on 8 October 1991. Milošević’s propaganda has obscured this fact, claiming instead that the cause of the war was a ‘struggle against secessionism’. This was done out of fear of foreign intervention: Milošević was supposedly seeking to preserve ‘the territorial integrity of SFRJ’, rather than waging a war of aggression against other states.
For, according to Article 72 of the 1990 Constitution of the Republic of Serbia: ‘The Republic of Serbia decides and ensures: the sovereignty, independence and territorial integrity of the Republic of Serbia, its international position and relations with other states and international organisations’, as well as ‘the defence of the security of the Republic of Serbia’ (with, according to Article 83, ‘armed forces which in peace and war are commanded by the President of Serbia’).
In accordance with this, Serbia by Article 135, para. 2 of the Constitution excluded itself from the legal system of SFRJ, whose laws henceforth did not apply to it. This provision inscribed Serbia’s right ‘to respect’ at its own will federal laws only when ‘this is in its interest’. This clause is rightly known as si volam (by my will), and it acts to negate every obligation undertaken under such conditions. If I have the right to behave as I will, then I have no obligation.
Soon after this, true to its independence and sovereignty, Serbia adopted a series of laws from the sphere of the former federation’s authority whereby it regulated its own credit and monetary policy and its own regulation of prices; imposed taxes on goods imported from abroad (including former SFRJ republics); and suspended a number of laws whose purpose was to implement former federal legislation. According to the laws of SFRJ (which Milošević was allegedly defending), the Serbian constitution and legislation alike constituted most serious criminal acts. By adopting this constitution, however, Serbia became sovereign and independent, hence outside the jurisdiction of the former SFRJ, so that no one could have taken legal action against those acts.
Karadžić made it clear on several occasions that nothing of what he had done would have been possible without Serbia. The war in Bosnia-Herzegovina was a typical ‘war by proxy’, conducted by the independent and sovereign Serbia by means of a mercenary ‘army of Republika Srpska’ and paramilitary bands recruited in Serbia, which included, of course, the Serbian UDB [security service]. Milošević supplied the necessary funds by stealing from the Serbian state budget.
The ‘civil war’ story has in any case been finally and unambiguously rejected by the practice of the Tribunal to date. Any defence of this story has become a hopeless undertaking.
Translated by Bosnian Institute