VIII. Protection against Revisionism

If you do not deal with a dark past ..., effectively look the beast in the eye, that beast is not going to lie down quietly; it is going, as sure as anything, to come back and haunt you horrendously. [494]

—Archbishop Desmond Tutu

Another long-term benefit of accountability relates to the importance of confronting the past. Trials make a particular contribution to establishing a record of past events. The evidentiary rules used at judicial proceedings, and the requirement that judgments be based on proven facts, help confer legitimacy on otherwise contestable facts and make it more difficult for “societies to indulge their fantasies of denial.”[495] Thus, one of the important benefits of trials is that they preserve a more accurate record of the crimes than might otherwise be the case, though they are not necessarily as comprehensive as a truth commission. This can help a community more readily come to grips with its past by publicly acknowledging the victims and by exposing (at least for the cases it covers) the truth about what happened. It is, therefore, a crucial tool for combating denial and revisionism. The Nuremburg trials, for example, have made it more difficult for subsequent generations of Holocaust deniers to make their claim even decades later. Evidence revealed in the trials became an insurmountable obstacle to those seeking to disprove that the crimes of the Nazi regime took place.

The value of trials both for bringing forward evidence that might otherwise not be disclosed and for refuting those who deny the existence of crimes can be seen in aspects of the work of the International Criminal Tribunal for the former Yugoslavia.

A. International Criminal Tribunal for the former Yugoslavia

Over the course of its trials, the ICTY accumulated a formidable wealth of documentary evidence and testimony that can serve as a reference point and help prevent the manipulation of history to sow the seeds of new conflicts.[496] Without the work of the ICTY, state secrets may have remained secrets and government efforts to misinform the public may not have been so effectively exposed. A recent study also shows that the work of the ICTY may have some small effect on attitudes toward the Balkans war crimes in Serbia, though coming to terms with the crimes will be a long-term process.

1. Milosevic trial

The trial of Slobodan Milosevic was the first ICTY case in which evidence was introduced relating to the three main conflicts in the breakup of Yugoslavia: Bosnia, Croatia, and Kosovo. Though Milosevic’s death kept it from ending in a verdict, Human Rights Watch found that the lengthy trial consolidated a great deal of information about the conflicts in the region that will help future generations understand how the wars came to pass.[497] Because much of Belgrade’s involvement had been kept secret, its exposure during the Milosevic trial shed important new light on the events. The fact that Milosevic had the opportunity to test the prosecutor’s evidence in cross-examination enhances its value as a historical record.

Although it was widely assumed that Serbia supported the Serb combatants in the conflicts in Bosnia and Croatia, the full extent of the support and the mechanisms by which it was accomplished did not become public until the Milosevic trial.[498] Milosevic himself discussed the secrecy involved, in a statement to a Belgrade investigating judge who was looking into allegations of misappropriation of customs funds in 2001. In his statement, admitted as an exhibit at trial, Milosevic admitted that the money was used to help rebel Serbs in Bosnia and Croatia:

As regards the resources spent for weapons, ammunition and other needs of the Army of Republika Srpska [in Bosnia and Herzegovina] and the Republic of Serbian Krajina [in Croatia], these expenditures constituted a state secret and because of state interests could not be indicated in the Law on the Budget, which is a public document. The same applies to the expenditures incurred by providing equipment, from a needle to an anchor, for the security forces and special anti-terrorist forces in particular, from light weapons and equipment to helicopters and other weapons which still remain where they are today, and this was not made public because it was a state secret, as was everything else that was provided for the Army of Republika Srpska. In my opinion, these matters should still constitute a state secret.[499]

The Milosevic trial opened the door on these state secrets. Evidence introduced at trial showed exactly how those in Belgrade and the Federal Republic of Yugoslavia (FRY) financed the war, how they provided weapons and material support to Bosnian and Croatian Serbs, and how the administrative and personnel structures were set up to support the Bosnian Serb and Croatian Serb forces.

Court proceedings that required disclosure of material by the Serbian government revealed previously unknown information about how the war was managed from Serbia. For example, Supreme Defense Council minutes acknowledging the need to hide from the public the massive assistance to the wartime Republika Srpska and the Republic of Serbian Krajina were made public for the first time as part of the Milosevic trial.[500] The Supreme Defense Council was comprised of the presidents of Serbia, Montenegro, and the Federal Republic of Yugoslavia. It met from 1992 to 2000 to make decisions about Yugoslavia’s defense and security. The meetings’ minutes and shorthand notes were introduced at trial as a result of the prosecutor’s pursuit of court orders requiring Serbia and Montenegro to comply with outstanding requests for documents under a court rule that allows the parties to obtain documents from states.[501] Although not all of the financing was done in secret,[502] the Milosevic trial was important in that evidence introduced at trial shed new light on both the financial structures set up to facilitate support for the new entities and on the sources of the money used to fund the conflicts.

Other new material was revealed for the first time in the Milosevic trial, including the “Scorpion video” that showed members of the notorious “Scorpion” unit, believed to have been acting under the aegis of the Serbian police, executing men and boys from Srebrenica at Trnovo. The video had an enormous impact on Serbia. As part of trial coverage, it was aired as news on a number of Serbian national television stations and reached a broad audience, sending shockwaves through society. The airing of the video engendered a great deal of national discussion about atrocities that many people in Serbia had previously denied.

In addition, the trial also examined Serbian government officials’ attempts to hide evidence of massacres. For example, witnesses described for the first time how the Minister of the Interior Vlajko Stojiljkovic, ordered a cover-up of the discovery of the decomposing remains of 86 Kosovo Albanians in a refrigerated truck driven into the Danube river in 1999.[503]

2. Srebrenica

In addition to bringing forward new historical information about the conflicts, evidence at the ICTY trials helped undermine the Bosnian Serb government’s denial of crimes. Following the massacre at Srebrenica in July 1995, the Bosnian Serb government attempted to obscure the extent of the carnage both through a report and through its public statements. Shortly after the attacks, Ratko Mladic insisted that Bosnian Serb soldiers treated the people of Srebrenica “correctly” but said a considerable number of soldiers and police had put on plainclothes and “merged with civilians.”[504] In September 2005 the government issued a report contending that exhausted Muslim men under extreme pressure imagined a massacre or invented stories to attract the attention of the international community. It called a Serbian soldier who admitted taking part in the killings “mentally disturbed.”[505]

In response to photos taken by the US government showing bodies lying in the vicinity of a grave on the day of the shooting and then the grave freshly covered with earth, the Bosnian Serb army spokesperson said that the grave contained the bodies of soldiers killed during battle. Exhumations conducted by the ICTY’s prosecutor’s office, however, starkly exposed the spokesperson’s lie.

Evidence from the exhumations introduced in court created a record of what happened in Srebrenica with a degree of certainty that would have otherwise been absent.[506] For example, extensive forensic evidence introduced during the trial of Gen. Radislav Krstic showed that over 400 ligatures and blindfolds were found in exhumations of 13 different gravesites. The majority of victims for whom a cause of death could be determined were killed by gunshot wounds; some of the victims were severely handicapped and, therefore, unlikely to have been combatants.[507] The voluminous forensic evidence corroborated witness testimony from survivors and a participant in the massacre. Based on the evidence, the court concluded that thousands of Bosnian Muslim men from Srebrenica were killed in careful and methodical mass executions.[508] Rather than being killed in battle as the government had claimed, the court found that most of the executions followed a well-established pattern whereby the men, who were unarmed and often blindfolded with their wrists tied behind their backs, were lined up and shot at execution fields in isolated locations.[509]

The confessions or guilty pleas of war criminals also help to establish the occurrence of events. Drazan Erdemovic’s confession to killing over 70 Muslim civilians outside of Srebrenica helped verify what happened there.[510]

An examination of the ICTY’s impact in Serbia by Diane Orentlicher reveals signs that its work may be having a modest positive effect in changing public perception of the conflict after years of propaganda. For a long time, nationalist figures claimed that the number of deaths in Srebrenica was much lower than other estimates and blamed many of the killings on intra-Muslim violence. In Serbian society, the mere existence of a crime in Srebrenica was denied by a third of the Serbian population and the fact that it constituted genocide was rejected by an overwhelming majority.[511] Although surveys show that most Serb citizens are not persuaded that Serbs committed a majority of war crimes during the conflict and believe that the ICTY is biased against Serbs because of the preponderance of Serb defendants, those numbers may slowly be changing.[512] Orentlicher’s study concludes that while the level of disbelief about the massacre in Srebrenica is high, between 2004 and 2006 there was a modest increase in Serbian respondents’ belief in the truth of reports of atrocities committed by Serbs and more acknowledgment of the core facts underlying the Srebrenica genocide.[513] She found that many “believe that the evidence adduced in The Hague has significantly ‘shrunk the public space’ in which political leaders can credibly deny the truth about notorious atrocities.”[514] Although the process of accepting what happened is a long-term one (as demonstrated in Germany after the Second World War), the trials may assist with that process.

The investigations and prosecutions at the ICTY mark the first time in the long history of the Balkans that impartial investigations have been conducted into the conflicts. Evidence brought out at trials lays a foundation for a better understanding of the conflict in the region which may foster enhanced stability in years to come.