A personal foreword by the Author

This publication served as a report, originally commissioned by the Prosecutor´s Office (OPT) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in preparation for the indictment and proceedings against Milan Milutinović, Dragoljub Ojdanić and Nikola Šainović as well as Slobodan Milošević. The expert witness opinion was ordered to prepare an overview on the historic context of the development of the constitutional system of the Socialist Federal Republic of Yugoslavia (SFRY) and the constitutional status of Kosovo within this federal system until its break-up in 1991 and the adoption of the new constitution of the Federal Republic of Yugoslavia (FRY) of 1992. From the very beginning it was made clear to me that the rules of Anglo-saxon criminal procedure are practiced. Hence, judges will officially not read anything in advance about the historic, that is, factual and political context, but have to listen and finally to evaluate all what is then called “established facts” in legalese on the basis of the oral presentations of witnesses nominated both by the prosecution and the defence lawyers and their possible cross-examination by one of the two sides in such adversarial proceedings. Moreover, there is a second characteristic of Anglo-saxon rules of criminal procedure to be taken into account, namely the possibility of plea-bargaining so that prosecution and defence can agree to set aside factual evidence which will not be presented then in the hearings before judges.

These observations shall make clear that the final product, the judgment, whether guilty or non-guilty and in particular its legal reasoning in order to explain and thereby justify the verdict, may not give a full picture of the events under consideration and therefore does not necessarily represent what is called “material truth” in continental European rules of criminal procedure. It will thus come as no surprise that those who have been found guilty and sentenced to several years in prison, but also their families and ethnic communities, let alone entire “nations” to whom they declare to “belong” or which they are seen to “represent”, will not believe in the “truth” and therefore justice of the verdict. Or as one of the indictees before the ICTY expressed it: “You have your facts. We have or facts. You have a complete right to choose between the two versions…”, thereby perfectly expressing the gap between knowledge and acknowledgment of both empirical and normative plausabilities which must fit together to create the legitimacy of any criminal court, whether local or international.

But the ICTY was more or less heavily criticised also in academic literature because of its lack of this “sociological” legitimacy. Guilty sentences as well as acquittals were seen as too “individualised and de-contextualised” by criminal procedures and, finally, handed down without the necessary outreach programs to explain it to the various societies of the successor states of SFRY. Thus, as critics argued, its judgments became never politically accepted in the respective societies as several opinion polls demonstrate and could therefore not contribute to transitional justice in terms of reconciliation after violent inter-ethnic conflict.

So why publish this expert witness report almost 20 years later? More than three decades after the break-down of Yugoslavia and all the international efforts to prevent and stop the various wars on the territories of its successor states as well to support their transformation to rule of law, democracy and market economy through “Europeanization”, we witness not only in light of recent political events in Bosnia-Herzegovina and Kosovo at the brink of mass violence, but all over Europe so-called “democratic backsliding.” Instead of the “stabilisation of democracy” as this had been predicted by “transformation theories” in the 1990s, we see again nationalistic populists in power who have established their authoritarian regimes under the euphemistic label “illiberal democracy” by abolishing freedom of information through a politically independent press and TV, manipulating general elections, and capturing the economic resources of the respective country. Thereby they can (mis-)use their newly gained, quasi monopolistic powers in the economy and politics for the formation of strong executive “leadership” and the “reform” of the judiciary in order to stabilize the political power of their own political party or ruling coalition against the change of government and opposition in the next elections which is the basic characteristic of political pluralism as the “essence” of democracy. It is thus worth quoting a report of the Belgrade Institute of European Studies from the following expert witness report concerning the Serbian constitution of 1990:

“The Serbian constitution adopted in 1990, which was the normative result of authoritarian and populist nationalism, is a paradigmatic instance in the abuse of law in order to secure the continuity of a political regime.  ... its democratic form ... was expected to secure the authoritarian structure of government based on the leadership of one man. ... Parliament is largely a simulation of democracy. The main political decisions are made by a single person, the President of the Republic, while the role of Parliament is to give these decisions an aura of constitutionality ... The regime needs the Constitution, parliament and government primarily to legalize and institutionalize its own power.“

In conclusion, do we make the same mistakes again and again? Not to understand that from the very beginning after the break-down of communist regimes in Central Eastern and South Eastern Europe communism was not necessarily replaced by liberalism, democracy and market systems as transformation theories had predicted, or better said, hoped for, but by more or less political mobilization of the electorate on the basis of (ethno-)national sentiments which not only led to the peaceful “divorce” of Czechoslovakia, but also to the ethnicized conflicts and wars on the territories of the former SFRY. It is my heartfelt conviction after 30 years of work as a researcher and practicioner in the field of human and minority rights with a special focus on South Eastern Europe that constitution-engineering for powersharing mechanisms as this was the case in Bosnia-Herzegovina and Kosovo is a necessary effort after violent ethnic conflict. But powersharing is not sufficient to “keep” the only negative peace, for instance, by UN peace-keeping forces deployed in “buffer zones” and territorially, institutionally and educationally segregated “ethnic” communities as this is the case even in Cyprus to this day despite its being a member state of the EU for almost twenty years now. Positive peace in terms of inter-ethnic coexistence and cooperation cannot be achieved by punitive measures in terms of retributive justice alone, but needs restorative justice through reconciliation measures in order to prevent “intergenerational vengeance.” Or, as this was expressed by the first President of the ICTY, Antonio Cassese, that “… feelings of hatred and resentment seething below the surface will, sooner or later, erupt and lead to renewed violence.” Also the European Union has postulated that transitional justice shall be “an integral part of state- and peace-building [that] should also be embedded in the wider crisis response, conflict prevention, security and development efforts of the EU.”

Therefore, the publication of the expert witness report shall serve a dual goal:

First, when single judges or panels of judges “determine the facts”, the report will demonstrate that the decision about what is true or not true is not easy. Thus, when reading the judgments against Milan Milutinović and Slobodan Milošević and the legal reasoning based on the testimonies and the cross-examination of individual eye witnesses, the publication of this report will help to “understand” not only the intricacies of the Anglo-saxon system of criminal procedure, but even more so the factual details mentioned by these witnesses with more or less accuracy and, even more important, the missing factual evidence necessary to get a comprehensive picture of events beyond single, fragmented acts evaluated by the judges whether they had been individual criminal deeds or not. Reading only these judgments without a “narrative generalization” based on a “comprehensive” analysis — following from scientific methods which this published report offers — will indeed create a good impression why the normatively necessary “individualization” and alleged “de-contextualization” by the ICTY procedures were not “accepted” as “truthfinding” endeavors by political elites and society-at-large.

One example, dealing with the topic of the expert witness report, namely the abolishment of the constitutionally guaranteed territorial autonomy of Kosovo under the Yugoslav federal constitution of 1974, must suffice for the purpose of demonstration.

On the 3rd of May 2002, the former President of Kosovo, Ibrahim Rugova, was called for his testimony and to report about the events in connection with the parliamentary debate within the Kosovo Assembly about “the suspension of the federal status of Kosova, that is, autonomous status of Kosova” on 28 March 1989. He told about the pressure due to the fact that there were police in the parliament building and the members had to vote under pressure. Also, that there were “demonstrations in this time, 1989” where “some were injured, and about 20 were killed.” Moreover, he reported that “special measures or extraordinary measures” were taken with “several institutions suspended” and “police control … established over Kosova.” Moreover, “Albanian police of Kosova became dismissed from their jobs, in 1991, all of them were dismissed.” In the following he reports about the “Constitutional Statement, or the Statement for Independence, which is asking for Kosova to become an independent republic equal to the other former republics of the former Federation.”

Judge Robinson, however, was not satisfied with this answer and asked “Dr. Rugova” to clarify his answer concerning the constitutional status of Kosovo: “In 1990, Kosovo had declared itself in independent entity within Yugoslavia, equal to the other republics. That is a status to be distinguished from independence.” In his reply, “the witness” repeated: “We proclaimed Kosova — at that time the former Yugoslavia, the Federation, still existed, and that being the case, Kosova too being either a republic or an independent country, would have relations with the other republics.”  It will come as no surprise that Slobodan Milošević in his cross-examination came back to the question whether Ibrahim Rugova was referring to Kosovo to become an equal republic within the framework of the SFRY or to become an independent state through secession from “Serbia.”

So, is it possible to “establish the facts” on the basis of this witness testimony and the cross-examination without any explanation of the doctrines of public international law and the constitutional law of SFRY concerning the principles of the sovereignty of states and the self-determination peoples including secession, as my expert witness report does? And what might have been the distinction between “special measures and extraordinary measures” which is also clarified by the report? And what about guessing about figures of dimissed police officers and other employees whereas my report tries to answer all these legal and empirical questions on the basis of careful research of sources taken from the Official Gazettes of Serbia and Kosovo themselves. By the way, this proves the statement of the Belgrade Institute of European Studies quoted above about the effort of the regime to “legalize” its unconstitutional measures.

Thus, it shall be no surprise that opinion polls in Serbia and Kosovo quoted above confirm the rejection of the findings of the ICTY and other criminal tribunals as ethnically biased following from desired forms of justice which are fundamentally incompatible when, for instance, Serbs in Bosnia and Herzegovina as well as Kosovo correctly claim that the conflict was not one-sided and crimes were committed on “both sides.” However, what turns these claims into an unjustifiable equalization of crimes, thereby blurring the lines of aggressor and victims or even leading to the reversal of this relationship, are claims for the mathematical ethnic reciprocity of indictees and guilty verdicts and acquittals through courts leading to the assertion that members of the own group would be the “real” victims if this is not the case. Hence, in the end, war criminals found guilty of genocide remain “heros” of their own people as the celebrations of Ratko Mladić in Republika Srpska and Belgrade in recent years demonstrate.

Milan Milanović tries to explain why the ICTY was therefore doomed to fail from the very beginning, since the factors of ethnification and societal polarization did not simply disappear with the end of the wars. He summarizes his findings with the following predictive factors: Ethnic group cohesion and polarization remained in place. And, in my opinion, not the least because of the strict corporate powersharing institutional arrangements both in Bosnia and Herzegovina as well as Kosovo which “cement” the ethnic divisions of society. Moreover, in conflicts driven by ethno-nationalism, elite continuity requires to maintain entrenched nationalist narratives. Prime Minister and then President of the Republic of Serbia from 2014 on, Aleksandar Vučić, was the former Minister of Information in the Milošević-regime; also, Bakir Izetbegović, the son of Bosniak wartime president Alija Izetbegović, as well as Prime Minister und President Hashim Thaçi, one of the former leaders of the Kosovo Liberation Army (KLA), may serve as prime examples for this elite continuity. Finally, there is a trend to authoritarianism including threats against and repression of alternative views expressed in the media and public education, at best leading to the marginalization of a weak and fragmented “parliamentary opposition”, but to the complete abolishment of political pluralism at worst. Milanović thus comes to the preliminay conclusion: “There is, in other words, always some kind of group narrative that cognitive biases can latch onto — what varies is what those in power do with them. At worst, as happened in former Yugoslavia, they will facilitate the creation of group-specific realities, that the work of the elite-discredited international criminal court or tribunal will be incapable of penetrating.”

Moreover, as analysed in more detail in academic literature, this was and is not only the problem of courts´ procedures and outreach programs, but also of international donors such as the USA and the EU, if they do not reflect the new nationalist ideologies of the political elites of successor states and their democratic backsliding on the basis of nationalist-authoritarian populism and therefore the lack of support of international tribunals by governments, both in Serbia as well as in Kosovo. Also problematic is the lack of effective civil society support by governments or international donors to overcome the ethno-nationalist and fascist binary thinking in “friends v. foes” (C. Schmitt). 

Finally, the second goal to be addressed in this foreword as problem for the support of transitional justice through reconciliation is the problem of how to teach the recent history of these wars in the 1990ies. As Edith Marko-Stöckl reported already in 2010, the first approach of the OSCE in Bosnia and Herzegovina was to blacken incriminated words, sentences or paragraphs in textbooks for primary and secondary school students. As one could have imagined, this even raised the curiosity of pupils to get to the “bottom” of those “facts” they were denied to read. Hence, under the direction of the OSCE, a local Commission for the Development of Guidelines on Textbook Writing for the Subject of History and Geography was established in 2004 and finally published “Guidelines for Writing and Evaluation of History Textbooks for Primary and Secondary Schools in Bosnia and Herzegovina” in which the principle of multi-perspectivity in order to enable pupils to learn tolerance was demanded.

However, a recent study on history teaching materials for the OSCE report “on learning and teaching about the period of 1992 – 1995 in primary schools throughout Bosnia and Herzegovina” provides devastating results. The author highlights her key findings more than twenty-five years after the end of the war:

“…

• The analysed textbooks and teaching materials are ethnocentric and develop three mutually exclusive narratives.

• … [They] contribute to the politicization and instrumentalization of the past rather than to mutual understanding and reconciliation.

• All recount the conflict-ridden 1990s almost exclusively as the years of one´s ‘own’ victimhood, promote empathy only toward one’s ‘own’ people, and portray the ‘other’ side almost exclusively as perpetrators.

• The implementation of multiperspectivity and related learning outcomes is not a predominant approach in any of the analysed textbooks and teaching materials.

• Where present, multiperspectivity and critical thinking are not designed to challenge the actions of members of one´s ‘own’ people.” 

Unfortunately, the reports about history teaching in Kosovo come to the same results with the conclusion that Kosovar history education needs a change. These reports must be seen as a writing on the wall! The only conclusion, hard to avoid for all international actors, not only the OSCE, but also the various EU bodies, can only be: Against all international recommendations and guidelines for the multiperspectivity approach and critical thinking, intergenerational vengeance is instilled into pupils to this day, laying the ground for renewed spirals into violent conflicts.

In the final analysis, cooperation with authoritarian nationalists is no guarantee for political stability, but exactly the opposite! What we need is no longer an even more refined institutional design of power-sharing with ethnic quotas, but re-education at all levels to explain the advantages of rule of law based on human and minority rights by an effective, that is politically and ethnically independent and impartial, judicial system as prerequisite for multiethnic societies as this is proclaimed for Kosovo in Article 3 of its constitution. Hence my own optimistic conclusion that my expert witness report can contribute through its comprehensive multi-factor analysis to the required multiperspectivity approach for critical thinking also in future educational efforts.