From Yugoslavia to the Western Balkans

Balkan Studies Library

Editor-in-Chief

Zoran Milutinović, University College London

Editorial Board

Gordon N. Bardos, Columbia UniversityAlex Drace-Francis, University of Amsterdam

Jasna Dragović-Soso, Goldsmiths, University of LondonChristian Voss, Humboldt University, Berlin

Advisory Board

Marie-Janine Calic, University of MunichLenard J. Cohen, Simon Fraser University

Radmila Gorup, Columbia UniversityRobert M. Hayden, University of Pittsburgh

Robert Hodel, Hamburg UniversityAnna Krasteva, New Bulgarian University

Galin Tihanov, Queen Mary, University of LondonMaria Todorova, University of Illinois

Andrew Wachtel, Northwestern University

VOLUME 7

The titles published in this series are listed at brill.com/bsl

From Yugoslavia to the Western Balkans

Studies of a European Disunion, 1991–2011

By

Robert M. Hayden

LEIDEN • BOSTON2013

Cover Illustration: the Greek – Macedonian border, from Greece into Macedonia 2010, photograph by Robert M. Hayden.

Library of Congress Cataloging-in-Publication Data

Hayden, Robert M. From Yugoslavia to the western Balkans : studies of a European disunion, 1991–2011 / by Robert M. Hayden.  pages cm. — (Balkan studies library ; volume 7) Includes bibliographical references and index. ISBN 978-90-04-24190-9 (hardback : acid-free paper) — ISBN 978-90-04-24191-6 (e-book)1. Yugoslavia—Politics and government—1992–2003. 2. Yugoslav War, 1991–1995. 3. Genocide—Yugoslavia. 4. Nationalism—Yugoslavia. 5. Yugoslavia—Ethnic relations. 6. Former Yugoslav republics—Politics and government. 7. Bosnia and Hercegovina—Politics and government. 8. Former Yugoslav republics—Ethnic relations. 9. Ethnic conflict—Former Yugoslav republics. 10. Nationalism—Former Yugoslav republics. I. Title.

 DR1318.H39 2013 949.703—dc23

2012034435

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CONTENTS

Acknowledgments  .......................................................................................... viiIntroduction  ..................................................................................................... ix

PART I

UNSTAKING VAMPIRES: DESTROYING THE YUGOSLAV NATION AND STATE

1.  The Use of National Stereotypes in the Wars in Yugoslavia  ....... 3

2.  Recounting the Dead: The Rediscovery and Redefinition of Wartime Massacres in Late- and Post-Communist Yugoslavia .... 25

3.  The Partition of Bosnia and Herzegovina, 1990–93  ........................ 49

4.  Muslims as “Others” in Serbian and Croatian Politics  .................. 71

5.  Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia  .................................................... 83

PART II

THE POWER OF LABELING: DISCOURSES ON GENOCIDE, ETHNIC CLEANSING & POPULATION TRANSFERS

6.  Schindler’s Fate: Genocide, Ethnic Cleansing and Population Transfers  ...................................................................................................... 113

7.  Mass Killings and Images of Genocide in Bosnia, 1941–45 and 1992–95  ................................................................................................ 137

8.  Mass Rape and Rape Avoidance in Ethno-National Conflicts: Sexual Violence in Liminalized States  ................................................ 171

vi contents

PART III

HUMANITARIAN HYPOCRISY

 9.  Human Rights Activists and the Civil War in Yugoslavia: The Questionable Morality of Liberal Absolutism  ....................... 203

10.  Humanrightsism: From Moral Critique of Violence to Crusade for Moral Violence  ................................................................................. 213

11.  “Genocide Denial” Laws as Secular Heresy: A Critical Analysis with Reference to Bosnia  ..................................................................... 239

12.  What’s Reconciliation Got to Do With It? The International Criminal Tribunal for the Former Yugoslavia (ICTY) as Antiwar Profitee  ...................................................................................... 267

PART IV

UN-IMAGINING COMMUNITIES

13.  “Democracy” Without a Demos? The Bosnian Constitutional Experiment  ............................................................................................... 289

14.  The Proposed 2009 Amendments on the Bosnian Constitution and the Continuing Reinvention of the Square Wheel  .............. 319

15.  Moral Vision and Impaired Insight: Or the Imagining of Other Peoples’ Communities in Bosnia  ....................................................... 343

CODA

16.  From EUphoria to EU-goslavia  ........................................................... 377

Index  ................................................................................................................... 389

ACKNOWLEDGMENTS

Most of the chapters in this book were published in a variety of journals and edited volumes, and I am grateful to the various publishers involved for granting the necessary permissions to republish them in their present form. Some chapters are in somewhat different form than were the origi-nal publications, in regard to, for example, reference styles. The original places of publication were as follows:

“The Use of National Stereotypes in the Wars in Yugoslavia,” in Andre Gerrits & Nanci Adler, eds., Vampires Unstaked: National Images, Stereo-types and Myths in East Central Europe, pp. 207–222. Amsterdam: North-Holland, 1995.

“Recounting the Dead: The Rediscovery and Redefinition of Wartime Massacres in Late- and Post-Communist Yugoslavia.” In Rubie S. Watson, ed., Memory, Opposition and History under State Socialism, pp. 167–184. Santa Fe, NM: School for American Research, 1994.

“The Partition of Bosnia and Herzegovina, 1990–1993.” RFE/FL Research Report 2(22): pp. 1–14, 28 May, 1993.

“Muslims as ‘Others’ in Serbian and Croatian Political Discourse,” in Joel Halpern & David Kideckel, eds., Neighbors at War: Anthropological Perspectives on Yugoslav Ethnicity, Culture and History, pp. 116–124. Uni-versity Park, PA: Penn State University Press, 2000. An earlier version appeared as well in R. Bulliett & Martha Goldstein, eds., “The Bosnian Crisis and the Islamic World,” New York: Columbia University Press, The Middle East Center, 2002.

“Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia.” American Ethnologist, 23(4): 783–801, 1996.

“Schindler’s Fate: Genocide, Ethnic Cleansing and Population Transfers.” A slightly edited version was published in Slavic Review, 55(4): 727–748, 1996. Reprinted with the permission of the publisher.

viii acknowledgments

“Mass Killings and Images of Genocide in Bosnia, 1941–45 and 1992–95,” in Dan Stone, ed., The Historiography of Genocide, pp. 487–516. London: Palgrave, 2008.

“Mass Rape and Rape Avoidance in Ethno-national Conflicts: Sexual Vio-lence in Liminalized States.” American Anthropologist, 102(1): 27–4, 2000.

“Human Rights and the Civil War in Yugoslavia.” Economic & Political Weekly, pp. 1252–1254, June 13–20, 1992.

“Biased Justice: Humanrightsism and the International Criminal Tribunal for Yugoslavia.” Cleveland State Law Review, 47(4): 549–573, 1999 cover date; published 5/2001.

“ ‘Genocide Denial’ Laws as Secular Heresy: A Critical Analysis with Refer-ence to Bosnia.” Originally published in Slavic Review 67(2): 384–407, 2008. Reprinted with the permission of the publisher.

“What’s Reconciliation Got to do With It? The International Criminal tri-bunal for the former Yugoslavia (ICTY) as Antiwar Profiteer.” Journal of Intervention & Statebuilding 5(3): 313–330, 2011.

“Democracy without a Demos? The Bosnian Constitutional Experiment and the Intentional Construction of Nonfunctioning States.” East Euro-pean Politics & Societies 19(2): 226–259, 2005. Reprinted with the permis-sion of the publisher.

“The Proposed 2009 Amendments on the Bosnian Constitution and the Continuing Reinvention of the Square Wheel.” Problems of Post-Communism 58(2): 3–16, 2011.

“Moral Vision and Impaired Insight: The Imagining of Other Peoples’ Communities in Bosnia.” Current Anthropology, 48(1): 105–131, 2007.

“From EUphoria to EU-goslavia” was presented as a keynote address at the conference “fy+20: New Perspectives on Former Yugoslavia,” Miami Uni-versity, Miami, Ohio, March 17, 2012. It appears here for the first time.

INTRODUCTION

In late 1991 and early 1992, Yugoslavia, a founding member of the United Nations and by the end of the Twentieth Century one of the only truly multi-national countries in Europe, collapsed in a set of wars that lasted until 1995, with a brief encore in 1999. Yugoslavia was multi-national in that it was a federation comprised of peoples (nations, narodi in what was then still called Serbo-Croatian), the members of which differenti-ated themselves from each other on grounds of language and (even under socialism) religious heritage, and with territories each considered a home-land. These homelands were largely but not completely institutionalized in the various Republics of the Federation: Croatia, Macedonia, Slovenia and Serbia each had large majorities of the titular nation, as did Montene-gro at a time when Serbs and Montenegrins were not very distinctive and more Montenegrins lived in Serbia than in Montenegro. Bosnia was a dif-ferent story, with no majority nation. Other republics had concentrations of minorities who formed local majorities (e.g. Albanians in the Kosovo autonomous province of Serbia; Serbs in parts of Croatia). Yet Yugoslavia was largely seen as a successful multinational country under its slogan of “brotherhood and unity” (bratstvo – jedinstvo) and also as the most economically successful socialist state, until suddenly it wasn’t.

Co-incidentally, but not by coincidence, the final steps towards estab-lishing the European Union with the Maastricht Treaty took place at exactly the same time as did the dismembering of Yugoslavia, and also the disbanding of the Warsaw Pact. Those of us who were studying Yugoslavia before its collapse thus found ourselves caught up in a perverse inversion of the processes being celebrated in the rest of Europe, the end of the Cold War being followed by a series of hot ones, the fall of the Iron Curtain and opening of frontiers elsewhere in Europe being followed by sanctions and the creation of new borders, the most open society in eastern Europe being replaced by repressive regimes, and the most prosperous economy in socialist Europe disintegrating into a handful of dysfunctional smaller ones, ridden with corruption, and the multi-national YU disintegrating as the multi-national EU was coming into existence. Most visibly and tragi-cally, Yugoslavs were being killed by the tens of thousands, and were being forcibly displaced by the millions, at a time when the rest of Europe was celebrating the non-violent end of the Cold War.

x introduction

The contrasts between the increasing unity of much of Europe as a multi-national confederation and the increasing disunity of Yugoslavia into the independence of its constituent nations provided not only the context for most of the articles in this volume, but the need for writing them in the first place. Intentionally or not, those Yugoslavs who most supported the ideals said to underlie European unity and the formation of the EU were routinely undermined by the official actors of the EU, the USA, and many international NGOs, such as Amnesty International and what was then called Helsinki Watch, later Human Rights Watch. As for results, these internationals had a near-perfect score of failure within what had been Yugoslavia, at least in terms of their stated goals. War was not prevented, ethnic cleansing was neither prevented nor reversed (Toal and Dahlman 2011: 305), a workable Bosnian state was not created (see Chap-ters 13 and 14), minority rights in the successor republics are “ostensible” or “so-called” (tobože, as Croatian President Franjo Tudjman described them just before launching, with US diplomatic backing and military training, the 1995 Operation Storm offensive that drove most Serbs from Croatia), and borders could in fact be changed by force and without consent, so long as the change was made by NATO.

The problem was brought home to me even before the wars began, in late 1990, when the Director of Helsinki Watch, Jeri Laber, published an op-ed piece in the New York Times calling for Yugoslavia to be broken up because its central government was not being effective in protecting human rights in Kosovo. She instead urged recognition of those repub-lics that would agree to protect the rights of their citizens. My response, printed as a letter by the Times, argued that this was a bizarre position for a “human rights” advocate to take, since the Republican governments that wanted to break up Yugoslavia were nationalist ones which would oppress their own minorities. My 1990 prediction was that

If the Yugoslav state collapses, the republics are almost certain to fight one another because of the large minority populations that are scattered through the country, each of which will be oppressed by the local majority and seek protection from compatriots in adjoining republics. At best, we could expect strict repression, perhaps massive expulsions, the sundering of mixed towns and families, followed by permanent hostility and an arms race – well known from the division of India and Pakistan in 1947. More likely would be such communal violence as to make present human rights abuses in Kosovo seem absolutely civilized (New York Times, Dec. 3, 1990).

I believe that my prediction was rather more accurate than that of the Executive Director of Helsinki Watch, but then I was monitoring closely what the various actors in Yugoslavia were saying to each other and to

introduction xi

their own publics in Serbo-Croatian, rather than what they were saying to foreigners in English, a point I return to below.

Having failed to achieve most, maybe all, of their stated goals in 1991–92, the various European Union and American actors in the formerly Yugo-slav space have relegated the region to the “Western Balkans.” This new geopolitical term at least has the virtue of associating the Balkans with the adjective “Western” for the first time since the concept of the “Balkans” was invented, as can easily be seen in the increasing literature stemming from the classic works by Milica Bakić-Hayden (1996) and Maria Todorova (1997) on the concepts of Balkanism and Orientalism as applied to the region. It is clearly a term of exclusion – the Balkans remaining somehow not European regardless of their location on the map – but possibly being on the way to become so, since they are now western. Of course, as I write (April 2012), the future of the EU itself is murky, a point to which I return in the Coda of the book (Chapter 16).

Sources and Perspective

The articles reprinted here reflect the unusual perspective of an anthropol-ogist who is also an academic lawyer, and who had been doing research in and on Yugoslavia for about a decade before the country collapsed. Thus I was fluent in Serbo-Croatian and familiar with social, political, legal and constitutional systems before the country went into collapse. Some of the other foreign scholars who had been studying Yugoslavia before 1991 reacted to the wars by producing books on the politics of the conflicts, based on detailed, careful study, using much information gathered from Yugoslav sources and in what was then known as Serbo-Croatian (few knew Albanian, Macedonian or Slovenian). Some superb studies resulted, notably Susan Woodward’s Balkan Tragedy (1995), Lenard Cohen’s Broken Bonds (1993), Steven Burg and Paul Shoup’s The War in Bosnia – Herze-govina (1999), and Xavier Bougarel’s Bosnie: Anatomie d’un Conflit (1996).

Unfortunately, crises also produce lots of poor scholarship. The litera-ture on the former Yugoslavia exploded along with the conflicts, but much of it was actually based on studies by people who had never heard of Bosnia until they saw the tragic pictures on the news, then knew every-thing they needed to know about the place before ever going there, and learned nothing once they got there that they did not know before, includ-ing the language. A Bosnian joke from the 1990s told of a Western scholar coming to Sarajevo, and when asked about the purpose of his visit reply-ing: ‘I am writing a book about Bosnia’. ‘Oh, that is nice; and when did you

xii introduction

arrive here?’ ‘Yesterday’. ‘And when are you leaving?’ ‘Tomorrow’. ‘And the title of your book will be . . .?’ ‘Bosnia Yesterday, Today, and Tomor-row’. The excellent studies by Woodward, Burg & Shoup, Cohen and Bou-garel mentioned above have been to some extent swamped by much such pseudo-scholarship. Still, their books have set very high standards for real scholars to follow.

My own decision, when war broke out in 1991, was that the best way to study it would be to track events very closely, and write articles on specific topics rather than try to undertake a unified approach to the whole mat-ter. I saw two advantages to such an approach. The first was simply that the enormous task of staying current on the Yugoslav situation, involving the daily collection of materials from the successor republics and from other sources, precluded undertaking the equally enormous task of writ-ing a book. Rather than subordinate my research to the demands of writ-ing, I decided to subordinate the writing to the demands of the research. The result was a series of studies of particular elements of the Yugoslav situation, grounded on detailed analyses of materials from Yugoslavia and from elsewhere.

If nothing else, I believe that my documentation of certain issues, par-ticularly in regard to constitutional debates, cultural politics, the con-struction of revisionist histories of the massacres during World War II, and some of the events surrounding the war in Bosnia, is superior to that found in any other study in English, while my analyses of some of the legal flaws of international humanitarian law are, at the least, original. However, I would hope that the analyses gain in perspective from their close connection to this documentation. As an anthropologist, I have tried to ground my analyses on materials and opinions from the region itself, thus to write an “ethnography of the present,” to borrow a term from Sally Falk Moore (1993). This means that I tried to understand local perspec-tives as much as possible, since it was local understandings and not the presumptions or pronouncements of foreigners that drove social action in the region. Reflecting as well the holistic approach of anthropology, I tried to engage with wider sources of data, and of issues, than many oth-ers, who concentrated more closely on politics. Thus I looked closely at local viewpoints on the supposed characters of the nations of Yugoslavia, at local concepts of the relationship between a state as a territory with a government, and a nation as, in American terms, an ethnic group, and at the ways that the soon-to-be-former Yugoslavs utilized accusations of genocide for their own purposes. In all cases, my analyses are closely tied

introduction xiii

to the views of Yugoslavs themselves, as expressed in what we used to call Serbo-Croatian.

Overview of This Book

Part I of this volume analyses the processes of destroying the assumptions of peaceful intermingling that were held by most Yugoslavs through the middle of the 1980s, even if they did not always exhibit the officially man-dated “brotherhood and unity.” Contrary to what common images of Bal-kan powder kegs or Balkans ghosts would lead one to expect, the peoples of Yugoslavia were so accustomed to living together, and so aware of what not doing so would lead to, that it took very great effort to get them to start shooting at each other. These points are made in Chapters 1 and 2, which recount in detail the successful use by leading Serbian and Croatian cultural and political figures of images of the fascist parties of World War II in order to destroy the brotherhood and unity of the Yugoslav peoples. These efforts succeeded because they were complementary: even as Croa-tian writers and politicians wrongly called all Serbs “Četniks,” some Serbs did adopt Četnik emblems and slogans; and as Serb writers and politicians called the Croats “Ustaša,” major Croatian figures and politicians adopted Ustaša slogans and emblems. The result was to resurrect both the Četniks and the Ustaša as positive symbols for some in, respectively, Serbia and Croatia, even as they remained universally reviled among, respectively, Croats and Serbs.

Acknowledging both the validity of literary scholar Toma Longinović’s critique of the use of the vampire trope in regard to events in the Balkans in the 1990s (Longinović 2011) and the stunningly effective, innovative invocation of exactly that trope in Tea Obrecht’s novel The Tiger’s Wife (Obrecht 2011), the image of vampires being unstaked seems to capture this process perfectly. Socialist Yugoslavia had buried any positive images of Četniks and Ustaša and staked them down with legal prohibitions, precisely the ones that Amnesty International and Helsinki Watch were complaining about in the 1980s as infringements of freedom of speech, though now they might well support them as controlling “hate speech” (see Chapters 9 and 11). Removing those stakes permitted those images to rise again and bring death to many people.

At the same time, the successful reincarnation of the Četniks and Ustaša images destroyed the basic presumptions of Yugoslavia. The country had been premised on the proposition that the Yugoslav peoples were so

xiv introduction

closely related (“brotherhood”) that they could live together in a common state, and so intermingled that they had to do so (“unity”). Specifically, Yugoslavia was a union of Serbs, Croats and others. Once it was accepted within Yugoslavia and by the “international community” that these pre-sumptions were false, the processes of unmixing these people proceeded according to a grim but simple logic. Chapter 5 analyzes this logic at the wider levels, while Chapters 3 and 4 do so at the level of the sole Republic that did not have a titular majority nation, Bosnia and Herzegovina, and whose constituent peoples (nations, narodi) did not agree on forming an independent state, either in 1991–92 or as I write in early 2012.

Part II offers understandings of the processes of mass violence that took place during the 1991–95 wars. These conflicts introduced the term “ethnic cleansing” into the international lexicon, a literal translation of the Serbo-Croatian etničko čiščenje, as violence was used to force people who were not members of one nation to leave permanently the regions in which they were living in order to secure it as the national territory/state of the group performing the expulsions. This process, however, very quickly became part of a larger set of charges and discourses concerning genocide, in part because of a sophisticated public relations campaign by the Bosnian Muslims (as they were then known, now Bosniaks), building on images of what were in fact horrible crimes, but not comparable to the Holocaust on any criterion even as Holocaust images and rhetorics were used to describe it. Accusations of genocide were not new to Yugoslavia, having been part of the arsenal of the campaigns to stake the nationalist vampires referred to in the first section, but also in the preparations for the war itself (see Chapter 2).

Thus Chapter 6 provides an analysis of the politicized uses of the terms genocide, ethnic cleansing and population transfers, and argues that the use of these terms depended on the political response sought by the speaker. That is, the same kinds of processes, even the same sets of actions, would be described as “genocide” if the speaker wanted to provoke action, “eth-nic cleansing” if the speaker wanted to be seen as strongly condemning them but not calling for action, and “population transfers” if they were being viewed as unfortunate but unavoidable or even necessary. Chapter 7 provides a close analysis of the ways in which accusations of genocide were made by writers arguing for the condemnation of the actions of the forces of specific nations during World War II, thus implicitly making a claim against such a nation on behalf of the nation of the victimes. Such claims were made increasingly in the late 1980s and in 1990–91, as part of the preparation to get the Yugoslavs to fight each other (see again Chap-ters 1 and 2), but after the wars were over the discources on genocide

introduction xv

became especially heated, discussed in Chapter 7 and again in Part III, in Chapter 11.

One set of violent acts said to distinguish the Yugoslav wars was the use of mass sexual violence. Chapter 8 provides a social science analysis of such crimes in the Bosnian war, making first some assessment of the extent of such attacks and of their spatial-temporal distribution during the war, and comparing these patterns to similar distributions of sexual violence in other conflicts, notably in South Asia. Where Chapter 8 breaks new ground is in the comparison of the circumstances in which sexual violence did not occur when it might reasonably have been expected, that is during conflicts between groups that had engaged in such violence nearby. One conclusion of the chapter is that sexual violence is explic-itly avoided when there is a shared understanding that at the end of the fighting the groups will still be living in close proximity and need to deal with each other frequently, but occurs when the message is that the group whose members are being raped have no future in the territory. Another is that rape in such cases is less driven by hatred than it is to provoke hatred – the victims do not want to return to the place where they were raped, or to live any more with members of the other community.

In Part III, the articles move from violence into what is supposed to guarantee that mass violence does not occur, or recur: human rights. It is often claimed that the Yugoslav violence led to important advances in safeguarding human rights, notably the founding of the International Criminal Court for the Former Yugoslavia (ICTY) and the erosion of the doctrines of state sovereignty in favor of an obligation to protect. How-ever, as the wars progressed, so did the separation between what human rights organizations had said they supported in the beginning of it all and the policies they actually embraced. While the reports of Amnesty and Helsinki Watch in the 1980s had criticized Yugoslavia’s suppression of the freedom of speech of nationalists, by the decade of the 2000s these organizations were in favor of criminalizing much the same stuff as “hate speech” (see Chapter 11). But this should not have surprised them, since some of the very same people whose rights were so suppressed in the 1980s wound up leading the events that led to the deaths of more than 100,000 and the displacement of millions, a result I predicted in 1992 (see Chapter 9). Even more curiously, an organization named Amnesty Inter-national became a strong proponent of prosecutions in the late 1990s, and to make the irony supreme, American humans rights organizations urged the adoption of procedural rules in international criminal tribunals that would deprive defendants of a fair trial in the name of protecting wit-nesses (see Chapters 10 and 12). I coined the term humanrightsism to deal

xvi introduction

with this phenomenon of the latest incarnation of the just war theory, this time driven by people doing the secular humanist version of God’s work – we might almost hear an updated version of the old Protestant hymn: onward humanitarian soldiers marching as to war/with the flag of human rights going on before.

Lest this seem cynical, ten years after writing on humanrightism (Chap-ter 10), I did some digging into the finances of the ICTY compared to those of organizations actually charged with rebuilding the Balkans, and spe-cifically Bosnia, now Chapter 12. It turns out that far more was spent on the ICTY than on organizations that were trying to actually help people in the region. For example, total UN expenditures for the UN Develop-ment Program (UNDP) between 1996 and 2009 were about 8.4% of the ICTY budget after 1993; and a total of only 38% of the ICTY budget for 2008–09 alone. Further, the total budget of the UNHCR for assisting more than 600,000 refugees and internally displaced persons (IDPs) in the two countries with the largest populations of such persons, Serbia and Bosnia, was about 8.8% of the ICTY budget for 2008–09. To put it another way, the ICTY by 2009 had spent about $14,000,000 per accused, with almost none of the money actually going to anyone in the Balkans. Instead it went to lawyers and experts, and human rights organizations have made very large amounts of money from the Balkan wars. It used to be said of missionaries under colonialism that they “came to pray and stayed to prey.” Since there is little if indeed any reliable evidence that war crimes trials have brought any tangible benefits to the region, and a fair amount of evidence that they have helped maintain tensions between the various nations (see Chapter 12), one must question the justifications for them except as mechanisms for human rights proponents to do well while claiming to be doing good.1

With the accomplishment of the thorough destruction of the broth-erhood and unity of the Yugoslav peoples, the question arose of what communities would replace them, an issue most acutely felt in the one Yugoslav republic that had not had an ethno-national majority group before the wars. While Bosnian literature and history do contain images of the peaceful co-existence of the largest nations there – the Bosniaks (until 1994, Muslims), Serbs and Croats – they also contain images of their

1 Full disclosure: I served as an expert witness in the very first case in the ICTY (Duško Tadić), giving evidence on constitutional issues and political conditions in Bosnia in 1991–92; see http://www.icty.org/x/cases/tadic/trans/en/960910ed.htm, beginning at p. 5590. My own antiwar profiteering was thus very limited.

introduction xvii

hostility, and in fact at literally no time since the establishment of Otto-man rule in Bosnia have the Bosnian peoples themselves agreed to form a sovereign state. Since at least 1989, there has been excellent evidence that the population of Bosnia and Herzegovina has overwhelmingly par-titioned itself into peoples (nations, narodi), as argued in Chapter 3. Even before the war in Bosnia began, the population had also self-partitioned into, effectively, separate electorates in a pattern very well known in simi-lar situations elsewhere in the world, one Muslim, one Serb, one Croat. The freely and fairly elected representatives of these separate nations/electorates could not agree on the structures of a functional state, since each group was primarily concerned with preventing its domination by the others, a deadlock making manifest the political conditions that drove to the failure of the state and ultimately to the war between these differ-ing communities.

Thus Part IV addresses issues of nations and state in Bosnia. Chapter 13 details the Bosnian experiment in creating a democracy without a demos, since there was no single population as a political unit, but rather the three separate electorates referred to above. Chapter 14 is an analysis of an attempt by the United States to impose a constitutional structure that would in fact have let one ethno-national group dominate the others, and how this was rejected, while also pointing out that the issues dividing the three major national groups have changed not at all since the first attempts to create a constitutional structure for a Bosnian state in 1990. The last chapter in this part, number 15, provides a detailed analyses of the myths of a single Bosnian people that have been promulgated to for-eigners in English, German and French but that have no currency among large percentages of Bosnia’s people, non-randomly distributed, when one looks at what their politicians say to them in Bosnian, and other indica-tors of multiple kinds concerning what people think. The article questions the morality of pretending that there is a single Bosnian people and that there can be a single, workable Bosnian state when there is very little evi-dence that either proposition can be true unless and until another round of ethnic cleansing takes place.

Rather than end on that note, however, the Coda of the book returns to the economic and political structures that had failed to work in Yugoslavia, and compares them to the economic and political structures of the Euro-pean Union, the unity of which is now in question. The prominent Slo-venian economist, lawyer and politician Jože Mencinger, a political actor in Slovenia’s secession from Yugoslavia and accession to the EU, has sug-gested that the EU in 2011–12 resembles the Yugoslav federation ca. 1983,

xviii introduction

eight years before the latter collapsed; others have noted that Slovenia’s “exceptionalism” in the post-Yugoslavia events is now precarious as well (Guardiancich 2012). As some of the chapters in this book note, the unrav-eling of Yugoslavia also began with an extended debt crisis, which led to a crisis in the political system in which politicians in each federal unit felt compelled to respond to the demands of their own several constituencies at the expense of the federation. Since the Lisbon Treaty provides even a weaker federal structure than did the Yugoslav constitution of 1974, the parallels may be apt, and are discussed in the Coda to this book, Chapter 16. Full consideration of such questions awaits the playing out of the EU story, but perhaps the crisis in the EU will show us how European a story the collapse of Yugoslavia really was.

Recognition of that fact might help develop policies that recognize the typically European nation-state realities that were brought about by the breakup of multi-national, multi-lingual, multi-religious Yugoslavia, a break-up, one will recall, that was encouraged by Western actors, who supported the creation of borders in Yugoslavia while taking them down elsewhere. Twenty years after the demise of Yugoslavia, the situation in most of the successor countries is stable, with the majority nation (narod) sovereign in its own territory, and minorities treated about as well, or not, as they are in the rest of Europe. To pretend that this situation is non-European is ludicrous, and to continue to pretend that the “Western Bal-kans” is somehow different from the rest of Europe, regardless of what happens to the EU, is absurd.

Pittsburgh, PennsylvaniaApril 2012

References

Bakić-Hayden, M. (1996). “Nesting Orientalisms: The Case of Former Yugoslavia.” Slavic Review 54: 917–931.

Guardiancich, I. (2012). “The Uncertain Future of Slovenian Exceptionalism.” East Euro-pean Politics and Societies 26(2): 380–399.

Longinović, T. (2011). Vampire Nation: Violence as Cultural Imaginary. Durham, NC, Duke University Press.

Moore, S. F. (1993). Moralizing States and the Ethnography of the Present. Fairfax, VA, Amer-ican Anthropological Association.

Obrecht, T. (2011). The Tiger’s Wife. New York, Random House.Toal, G. and C. T. Dahlman (2011). Bosnia Remade: Ethnic Cleansing and its Reversal. Oxford,

Oxford University Press.Todorova, M. (1997). Imagining the Balkans. New York, Oxford University Press.

PART I

UNSTAKING VAMPIRES: DESTROYING THE YUGOSLAV NATION AND STATE

CHAPTER ONE

THE USE OF NATIONAL STEREOTYPES IN THE WARS IN YUGOSLAVIA

English persons . . . of humanitarian and reformist dis-position constantly went out to the Balkan Peninsula to see who was in fact ill-treating whom, and, being by the very nature of their perfectionist faith unable to accept the horrid hypothesis that everybody was ill-treating everybody else, all came back with a pet Balkan people established in their hearts as suffering and innocent, eternally the massacree and never the massacrer. The Bulgarians as preferred by the Buxton brothers, and the Albanians as championed by Miss Durham, strongly resembled Sir Joshua Reynolds’s pic-ture of the Infant Samuel. But . . . to hear Balkan-fanciers talk about each other’s Infant Samuel was to think of some painter not at all like Sir Joshua Reynolds, say Hieronymous Bosch.

Rebecca West (1982 [1940–41]: 20)

Summer 1991: Terrorists and Other Foreigners

In the summer of 1991, as the civil war in Yugoslavia began in earnest, newspapers in Serbia and Croatia gave bizarre reports of the participation on their opponents’ side of a gallery of the world’s terrorists and other undesirable mercenaries. At various times, each asserted that the other’s forces included members of the Palestine Liberation Organization, the Irish Republican Army, the Tamil Tigers, Sikhs, Kurds, and “Blacks” (crnci). Serb papers also said that Croat forces included Czechs and Albanians, while Croat papers found Russians and Romanian Securitate among the Serbs; somehow, Paraguayans were said to be on both sides.1

At the same time that these improbable sightings of foreigners were being reported, some of these same papers were printing actual lists of casualties among the soldiers of the Yugoslav federal army, the JNA, which showed clearly that Yugoslavs of all nationalities were being killed,

1 Some of these allegations are mentioned in Vreme, 2 September 1991: 22. I recall others from my reading of the press at the time.

4 chapter one

wounded and captured. August 1991 saw demonstrations at federal army headquarters in Belgrade by parents from all over Yugoslavia, demanding that their sons be released from army service.2 Thus we are presented with a paradox. While the casualties in the war in the summer of 1991 were certainly Yugoslavs, the controlled press found it necessary to allo-cate at least some of the blame for this situation to foreigners.3

This paradox reveals, I think, quite a lot about Yugoslav views of them-selves and of each other, as Yugoslav peoples, at the time the war began. Despite the rhetoric enunciated then by foreign observers and by those Yugoslav leaders who were bringing tragedy to their own peoples in the name of their greater glory, about the supposed implacable hatred and “age-old enmity” of the Yugoslav peoples, the Yugoslavs themselves had difficulty envisioning their nations as capable of killing each other as they had from 1941–45, in part because the memories of that period were still so strongly in living memory. Normal people could not act in such a way. The fratricide of civil war thus could not be recognized as such. Instead, deaths were blamed on foreigners and abnormal Yugoslavs until the brotherhood of the Yugoslav peoples could be denied, to destroy the unity of Yugoslavia.4

Consideration of the roles of national stereotypes in the Yugoslav wars is thus not a simple matter, because the views that Yugoslavs had of their own and each others’ nations changed as the war expanded to destroy the country. Further, the national stereotypes of the Yugoslavs themselves played both off of and into those of some western Europeans and Ameri-cans, not least because of the characteristics imputed to “the Balkans” as opposed to “Europe.” Tragically, for some of the Yugoslav actors the worst stereotypes became role models, adopted by those who committed atrocities against their enemies; while for the European Community (EC), NATO and other such civilized entities, the stereotype of “the Balkans”

2 Vreme, 2 September 1991: 14–15.3 Government control over the press in Serbia and Croatia is documented by Hayden,

R. M. (1991) “Yugoslavia: Politics and the Media,” RFE/RL Report on Eastern Europe 2(49): 17–26, Andrejevich, M. and G. Bardos (1992), “The Media in Regions of Conflict: Ser-bia and Montenegro” RFE/RL Report on Eastern Europe: 86–91. See also Christian Science Monitor (26 January 1993: 2, 12, 13), among other sources. Unfortunately, the free press of western Europe and America, with a few exceptions like the BBC’s Misha Glenny and American National Public Radio’s Sylvia Poggioli, did not do a much better job, as acknowl-edged by Poggioli, S. (1993), “Scouts without Compasses,” Nieman Reports: 16–19.

4 For those not familiar with Tito’s Yugoslavia, a guiding ideological principle was “brotherhood and unity” (bratstvo – jedinstvo).

national stereotypes in the wars in yugoslavia 5

was invoked to justify their own inept handling of the political problems of Yugoslavia.

This paper analyzes the use of national stereotypes of the Yugoslav peo-ples at three levels. Considered first are the separate stereotypes of the “ultranationalists” among the two largest groups, the Serb Četniks and the Croat Ustaša. These images operate at an immediate level as markers of a structural opposition between Serbs and Croats, although both can also be analyzed as variants of European fascism. These stereotypes also play into a wider European symbolic geography, however, which privileges a supposedly civilized West against a putatively uncivilized East, a distinc-tion often expressed as being between “Europe” and “the Balkans.”5 Thus the second part of the analysis considers the importance of this wider European orientalism in the context of Yugoslav internal politics from the mid-1980s until the collapse of Yugoslavia. Finally, the paper looks at the use of these same orientalist visions of “the Balkans” by European and American political figures to justify their appallingly inept treatment of the political problems of Yugoslavia.

Before beginning the analysis, however, a few comments on the simi-larities among and distinctions between the Serbs, Croats and Muslims are in order. While the history of the separate nationalisms of the South Slavic peoples is beyond the scope of this paper, suffice it to say that there are as many “objective” differences (e.g., of language [dialect], religion, food, economy) between Bavarians and Prussians than between Serbs and Croats, and not many more between these peoples and the Bosnian Muslims.6 The distinguishing and defining characteristic of these people(s) now is religion, but this has not always been so. As Hammel puts it, “the emergence of the modern standard classification that identifies Croats with Catholicism and Serbs with Orthodoxy came only with the absolut-ism of the Habsburgs in the 18th century. Ethnic classification in the Bal-kans is thus not strictly an endogenous process but either exogenously

5 See Said, E. (1979) Orientalism. New York, Vintage; Bakić-Hayden, M. and R. M. Hayden (1992) “Orientalist Variations on the Theme ‘Balkans:’ ” Slavic Review 51(1): 1–15; Todorova, M. (2005). “The Trap of Backwardness: Modernity, Temporality, and the Study of Eastern European Nationalism,” Slavic Review 64(1): 140–164.

6 Hammel, E. A. (1993) “Demography and the origins of the Yugoslav civil war,” Anthro-pology Today 9: 4–9; Hammel, E. A. (1993) “The Yugoslav Labyrinth,” Anthropology of East Europe Review 11: 39–47.

6 chapter one

imposed or endogenously shaped in response to exogenous pressures.”7 This assessment holds true today, as will be seen.

Četniks and Ustašas: The Structural Opposition of Serb and Croat Fascists

The Serb Četniks and Croat Ustaša were the prototypes of extreme nation-alism during the wars in Yugoslavia of 1941–45. As political movements, the two groups shared many of the features that Sternhell has identified as central to fascism: “a synthesis of organic nationalism and anti-Marxist socialism, a revolutionary ideology based on a simultaneous rejection of liberalism, Marxism, and democracy.”8 However, their “organic national-ism” necessitated another rejection, which was of Serbs, Croats and oth-ers as kindred, “brother nations.” While from 1941–43 the Četniks under General Draža Mihailović were considered to be the army of the Yugoslav government in exile, their pronounced hostility to Croats and Muslims, including massacres of both, made them unacceptable to Croat and Mus-lim politicians.9 The Ustašas, for their part, based much of their political program on anti-Serbianism, attempting to create a purely Croat state from which the Serb minority would be removed by expulsion, conver-sion, and extermination.

The Četniks and Ustaša political programs had conflicting territorial pretensions. The Serb dream was of all Serbs in one state, which thus had to include Bosnia and Herzegovina and parts of Croatia. The Croat dream was of an independent Croatia excluding Serbs but including Bosnia and Herzegovina and part of the Vojvodina. The problem presented by the Muslims was treated differently by these movements. Neither Serbs nor Croats accepted the legitimacy of a Muslim nation (narod), seeing them

7 Hammel, E. A. (1993) “The Yugoslav Labyrinth,” Anthropology of East Europe Review 11: 39–47.

8 Sternhell, Z. (1986) Neither Right nor Left: Fascist Ideology in France, Berkeley, Univer-sity of California Press. Aleksa Djilas has argued that the Ustaša ideology differed from that of fascism by positing a final, stable goal: the homogenous nation state. Fascism instead foresaw only ceaseless struggle. At the same time, he differentiates their position from those of typical European nationalists of the 19th and 20th centuries by saying that the Ustašas adopted methods of struggle and rule that resembled those of the Nazis; see Djilas, A. (1991) The contested country: Yugoslav unity and communist revolution, 1919–1953, Cam-bridge, Mass., Harvard University Press. This adoption of violent means to achieve nation-alist goals brings the Ustaša movement close to Sternhell’s view of fascism.

9 Djilas, A. (1991) The contested country: Yugoslav unity and communist revolution, 1919–1953. Cambridge, Mass., Harvard University Press.

national stereotypes in the wars in yugoslavia 7

instead as apostate ethnic Serbs or Croats, respectively.10 However, the Serb nationalists were overwhelmingly hostile to the Muslims, while the founder of modern Croat nationalism, Ante Starčević, regarded them as the best Croats, and the Ustašas termed Muslims, in Ivo Banac’s transla-tion, “the bloom of the Croat people” (Banac 1984: 377).11

While the war included a large array of political actors and their mili-tary and paramilitary groups, the Četniks and Ustaša came to symbolize the worst elements of murderous extreme nationalists among Serbs and Croats. In fact, their ideologies were conceptually similar, in that both viewed the state as the embodiment of the ethnically defined nation, in which others did not belong. However, the specifics of their national identities made them structural opponents wherever their territorial pre-tensions overlapped. The structural nature of their opposition was made manifest by the physical appearance that each group cultivated. The personal styles of Četniks and Ustaša marked the members of the two groups more than did their uniforms. Četniks cultivated large beards and long, flowing hair, while the Ustašas were clean-cut. In part, the Ustašas resembled their mentors, the Nazis, while the Četniks invoked images of the hajduks, hill bandits famed for their opposition to the Ottoman

10 It is sometimes suggested that since “Muslim” is a religious category and not an ethnic one, “Muslims” cannot be a real nation. The objection is misplaced, however. The definitive difference at present between Serbs and Croats is religion, and exactly the same differentiation defines the Muslims. Bosnian Muslim efforts to establish themselves as a “nation” were recognized in 1968, when they were given the status of a constituent nation (narod) in Yugoslavia; see Rusinow, D. I. (1982), Yugoslavia’s Muslim Nation, Hanover, NH, American Universities Field Staff; Burg, S. L. (1983), The Political Integration of Yugoslavia’s Muslims: Determinants of Succes and Failure, Pittsburgh, University of Pittsburgh Center for Russian & East European Studies. Refusal to accept “Muslims” as a “real” nation continues, not only among Serbs and Croats but among Germans. Thus an ethnic map accompanying a 1992 German article on Serbs in Croatia puts the terms “Muselmanen” and “Jugoslawen” in quotation marks, treatment not accorded to the labels Serben, Kroaten, Montenegri-ner and others (Karger, A. [1992] “Die Serbischen Siedlungraume in Kroatien,” Osteuropa 42: 141–146). Recognition of Muslims as a separate nation is not unique to Yugoslavia. The justification for the creation of Pakistan in 1947 was that Indian Muslims constituted a separate nation.

11  Banac, I. (1983) The National Question in Yugoslavia: Origins, History, Politics Ithaca, NY, Cornell University Press. The Starčević and later Ustaša ideologies regarding Muslims and Serbs were confusing and not necessarily consistent. Starčević admired Muslims as part of his opposition to the Austro-Hungarian empire, and his Croatian ideology did not preclude Muslims from being part of the Croat people while it did so preclude Serbs who identified themselves as Serbs (Banac 1983: 363–364). The Ustaša hatred of Serbs was justi-fied inconsistently, sometimes on racial grounds, sometimes on purely political grounds. Aleksa Djilas (1991: 114) has described their ideology as combining traditional European nationalism with “biological . . . concepts such as blood, race and instinct.”

8 chapter one

rulers. More importantly, though, the grooming styles of Četniks and Ustašas reflected the difference between Orthodox and Catholic clergy. Since the confessional difference had become the defining characteristic distinguishing Serbs from Croats, the immediate reflection of this in the physical appearance of the two groups of fighters was part of an overrid-ing symbolic structure of distinction.

The slaughter committed by all sides was horrific; those who have been shocked by the reports of events in Bosnia in 1992–93 would not be had they read the reports of what happened there and in Croatia from 1941–45. The major difference was that while in the 1940s Serbs were the primary victims and Croats and Muslims the primary victimizers, in 1992–93 Mus-lims were the primary victims and Serbs and Croats the victimizers. As in 1992–93, the slaughter was low-tech, and while camps did exist (Jaseno-vac being the leading example), most of the atrocities occurred in villages and towns.

With the communist victory and consolidation of power in 1945, many Ustaša and Četniks were killed, and many were forced into exile. Both groups continued to oppose Yugoslavia from abroad, with great freedom to operate in the Free World, although both Croat and Serb groups were on the U.S. Attorney General’s list of terrorist organizations through 1991. Croat fascists, at least, were assisted in escaping communist Yugoslavia by western governments, and both Croat and Serb war criminals found sanctuary in the United States, among other countries.12

Within Yugoslavia itself, both Četniks and Ustašas were considered criminals, the movements and their insignia banned. In the wake of the wholesale slaughter of the war years, extreme nationalism was discredited for many people. At the same time, since resistance to the communist regime found great support in the émigré Serb and Croat communities, it was clearly worthwhile for the Yugoslav government to portray the Četniks and Ustašas in the worst possible light. Thus a past as a member of either group was a handicap in communist Yugoslavia and could not be admitted until the last years of communist rule.

In the émigré communities, more tensions often existed between Serbs and Croats than were manifested in Yugoslavia itself. While external Četniks and Ustašas shared the goal of destroying communist Yugoslavia, their views of the new states to succeed it continued to be at odds, due to their overlapping territorial pretensions. Thus despite their common

12 Aarons, M. and J. Loftus (1991) Ratlines. London, Mandarin.

national stereotypes in the wars in yugoslavia 9

opposition to the Yugoslav state, the émigré nationalists retained the ele-ments of their structural opposition to each other.

Coexistence and Intermingling, 1945–1990

Despite the slaughter of the 1940s, Yugoslavs of different nationalities not only coexisted but became increasingly intermingled from the end of the war until the late 1980s. In spite of the maintenance of high levels of ter-ritorial concentration of the various national groups in their own titular republics, the levels of ethnonational heterogeneity throughout most of Yugoslavia were increasing. In Slovenia, for example, the concentration of the Slovene population increased between 1981 and 1991, with 97.7% of Slovenes residing in Slovenia in 1981 and 99.3% in 1991.13 During this same ten-year period, however, the homogeneity of the Slovenian popula-tion decreased, from 90.5% Slovene to 87.6% Slovene.14 Slovenia was not unusual in this regard.

From 1953 until 1981, almost all of the territories of Yugoslavia became increasingly heterogeneous, meaning that in almost all republics, the percentage of the population comprised of the majority national group declined.15 The exceptions were the two autonomous provinces in Serbia, and Bosnia and Herzegovina. In Kosovo, the majority Albanian popula-tion increased its percentage markedly. In Vojvodina, the majority Serb population increased slightly. In B&H, a new system of classifications on the census turned the Serb plurality of 1961 into a Muslim one by 1971. Between 1981 and 1991, heterogeneity increased in Montenegro, Macedo-nia, Slovenia and Serbia, but decreased in Croatia and Bosnia and Her-zegovina.16 The decrease in heterogeneity in Croatia seems linked to the sharp decrease in the percentage of people who declared themselves “Yugoslavs,” opting instead for “Croat.”

Accompanying the increasing heterogeneity of most of the repub-lics was an increase in the rates of intermarriage. From the early 1950s through the 1980s, “mixed” marriages increased in absolute numbers and

13 Petrović, R. (1992) “The National Composition of Yugoslavia’s Population.” Yugoslav Survey 1992(1).

14 Ibid., p. 9.15 Petrović, R. (1987) Migracije u Jugoslaviji i etnički aspeckt. Beograd, Istraživačko-

izdavački centar SSO Srbije.16 Petrović, R. (1992) “The National Composition of Yugolsavia’s Population.” Yugoslav

Survey 1992(1).

10 chapter one

in proportion to all marriages throughout most of Yugoslavia,17 but were particularly common among Serbs and Croats in Croatia and Serbs and Muslims in B&H. Not surprisingly, the highest rates of intermarriage came in the places where the populations lived most intermingled: the large cities, Vojvodina, B&H and the parts of Croatia that had large numbers of Serbs as well as Croats.18 In the town of Petrinja, for example, in the Banija region of Croatia, the population was about equally divided between Serbs and Croats, and the rate of intermarriage was about 25%; while in Pakrac, Slavonija (Croatia), the rate of intermarriage was about 35%.19

Mixed marriages, of course, produce children of mixed background. Already by 1981, about a third of the children born in Slavonian towns such as Osijek were of mixed Serb-Croat parentage.20 B&H had the high-est percentage of “mixed” children, 15.9% overall, but again concentrated in a few regions. Even Slovenia had large numbers of “mixed” or “foreign” births: 7.9% from mixed marriages and another 19% from non-Slovene parents, leaving only 73.1% of children issuing from purely Slovene marriages.21

Another indicator of heterogeneity can be seen in the figures on those who identified themselves as “Yugoslavs” in the censes, instead of as members of any of the national groups. Between 1971 and 1981 “Yugoslavs” increased dramatically, from 1.3% to 5.4% of the total population.22 The distribution of these Yugoslavs, like that of mixed marriages, was not uni-form, being concentrated in major cities, Vojvodina, Istria and the ethni-cally mixed regions of Croatia.23

The resurgence of mutually hostile nationalisms in the late 1980s led to a sharp decline in the percentage of self-declared Yugoslavs throughout the country in the 1991 census. The sharpest drop was in Croatia, from

17  Vreme, 11 March 1991: 31.18  The recent argument by Botev and Wagner (1993), that rates of intermarriage did

not increase, is flawed. They consider figures only at the level of republic or autonomous province, and do not look at the regions where the populations were most intermingled – which is precisely where the rises in mixed marriages were concentrated. See Botev, N. and R. A. Wagner (1993) “Seeing Past the Barricades: Ethnic Intermarriage in Yugoslavia in the Last Three Deacades,” Anthropology of East Europe Review 11: 27–34.

19  Borba, 30 Sept. 1991: 11.20 Ibid.21  Ibid.22 Burg, S. L. and M. Berbaum (1989) “Community, Integration and Stability in Multina-

tional Yugoslavia,” American Political Science Review 83: 535–554.23 Petrović, R. (1987). Migracije u Jugoslaviji i etnički aspeckt. Beograd, Istraživačko-

izdavački centar SSO Srbije. See also Danas, 6 August 1991: 21.

national stereotypes in the wars in yugoslavia 11

8.2% in 1981 to 2.2%, but declines were also reported from all other regions of the country.24 Still, the largest percentages of Yugoslavs were found in the most mixed areas in B&H and Croatia.25 At the same time, the incidence of mixed marriages dropped. In Croatia, according to research done by Professor Ivan Šiber of the Political Science Faculty of Zagreb University, the percentage of mixed marriages dropped from 20% in 1990 to 14% in 1992. Similarly, the percentage of Croats who would consider entering a mixed marriage declined dramatically. As Professor Šiber put it, “In a situation in which we are confronted with ethnic cleansing, when theories about population transfers recur, when ethnic purity is a leading theme of political discourse, nationally mixed marriages are an undesir-able phenomenon.”26

Vampires Unstaked: The Return of Četniks and Ustašas

The resurgence of chauvinistic nationalism in Yugoslavia in the 1980s has not yet received serious study. The simplistic view that all troubles started in 1986 with the Memorandum of a group from the Serbian Academy of Sciences and Arts, which might be called the fearful asymmetry of analy-sis, manages to avoid dealing with the rise of similar nationalist move-ments in other parts of Yugoslavia.27 Serbian nationalism arose in the context of parallel movements in other republics, notably Slovenia. Thus at the same time that the “group of intellectuals” at the Serbian Academy was writing the Memorandum, a conceptually similar Slovenian National Program was being written by a group of Slovenian intellectuals. It should be noted that this expression of Slovenian nationalism, which revealed a strong bias against Yugoslavs from all other republics,28 arose before Slobodan Milošević came to power in Serbia, and he was able to build

24 Petrović, R. (1992) “The National Composition of Yugolsavia’s Population.” Yugoslav Survey 1992(1).

25 Danas, 6 August 1991: 21.26 Feral Tribune, 11 January 1994.27 See, flagrantly e.g., Banac, I. (1992). “The Fearful Asymmetry of War: The Causes and

Consequences of Yugoslavia’s Demise.” Daedalus 121: 141–174.28 Slovenia, as the most prosperous republic, had attracted many guest workers from

the other parts of Yugoslavia. The German term Gastarbeiter was used to refer to these workers, who were also known as Bosanci (Bosnians), a term that referred to any other non-Slovene Yugoslav. These “guest workers” were as popular in Slovenia as are Turks in Germany; see, e.g., Mežnarić, S. (1986) Bosanci. Ljubljana.

12 chapter one

some of his earliest appeal in Serbia by seeming to counter Slovenian attacks on Serbia.

The Serbian Memorandum and the Slovenian National Program had in common a basic argument, that Yugoslavia had been a mistake, and rea-soning that was similar in structure but inverted in content. To the writers of the Slovenian Program, Yugoslavia hindered the development of the Slovenes, who were forced to sacrifice for their primitive Balkan quasi-brethren.29 To the authors of the Serbian Memorandum, Yugoslavia was a mistake in which Serbia had sacrificed its vital interests for the benefit of the other Yugoslav peoples, who were not only ungrateful, but actually hostile to Serbs.

Both the Serbian Memorandum and the Slovene National Program were written as dissident documents, and were opposed by federal and republi-can communist leaderships. However, Slobodan Milošević took this dissi-dent program and used it as a platform to stage a coup within the League of Communists of Serbia, thus becoming the first successful politician to run against the established principles of Yugoslav self-management social-ism. Indeed, one might almost say that Milošević was the first dissident politician in Yugoslavia. Further, Milošević’s ascension was welcomed ini-tially by the leaders of the other republics.30 Thus an analysis of the rise of nationalism in the Yugoslav republics in the 1980s will have to consider, at the least, the simultaneous development of nationalist critiques in Serbia and Slovenia in 1986.

The political message that triumphed in Yugoslavia in the late 1980s was that of the classic nation-state, in which the state would be the high-est form of development of the nation, ethnically defined. A basic part of this message was hostility to minorities, as pronounced in Slovenia as in Serbia.31 This view places sovereignty not in the body of equal citizens, but in only those citizens who are members of the majority ethnic nation, a principle that I have called “constitutional nationalism.”32 Croatia’s Pres-ident Tudjman phrased the matter in a 1993 speech as follows: “Here in Croatia the Croatians are sovereign, and to the Serbs are accorded all the rights of a national minority and all individual rights. . . . But it cannot be

29 As discussed in the final section of this paper, part of the Slovene proclamation of political faith since the late 1980s has been that they are not part of “the Balkans.”

30 See p. 78 in Djukić, S. (1992) Kako se dogodio narod. Beograd.31  See Mežnarić, S. (1986) Bosanci. Ljubljana.32 Hayden, R. M. (1992) “Constitutional Nationalism in the Formerly Yugoslav Repub-

lics.” Slavic Review 51(4): 654–673.

national stereotypes in the wars in yugoslavia 13

asked that about 8% of the population, the Serbs, who found themselves here as a result of historical developments, should be sovereign in the country of Croatia.”33 Conceptually and constitutionally, the transition in the various Yugoslav republics has been from state socialism, in which the point of the state was to advance the interests of that part of the popu-lation that formed the working class, to state chauvinism, in which the point of the state is to advance the interests of that part of the population that forms the majority nation This was as true in Serbia as in the other republics, as shown by the Serbian Memorandum (5a, suverenost naroda and 5b, samoodredjenje nacije).34

There was a striking difference in the strategic positions of the Slo-venes, Serbs and Croats in regard to establishing a system of state chau-vinism. The Slovenes were the most concentrated nation in Yugoslavia, with almost all of them (more than 97%) living in Slovenia. At the same time, the numerous minorities did not form a local majority anywhere in the republic. Thus severing Slovenia from Yugoslavia would establish the conditions to achieve the nationalist program. Serbs, on the other hand, were the most dispersed nation, with more than two million of their co-nationals outside of Serbia. There were also a fairly large number of Croats outside of Croatia, particularly in Bosnia. Thus when it became apparent that Yugoslavia would not survive, both the Serb and Croat leaderships were concerned with incorporating their co-nationals, especially those in Bosnia and Herzegovina, into the new national state. The Serbian and Croatian presidents, meeting on the border between their two republics on March 14, 1991, agreed to divide Bosnia and Herzegovina between them,35 a strategy that they carried out in 1992–93.36

In a context of rising nationalist hostility, the previous history of the Četniks and Ustaša provided Serb and Croat political actors with ready-made bogy men, labels of terrible import to apply to anyone on the other side.37 Thus Serb political cartoonists portrayed resurgent Ustaša

33 Markotich, S. (1993) “The Situation of Serbs in Croatia.” RFE/RL Report on Eastern Europe: 30.

34 My reference to the Memorandum is to the version published in a special edition of Duga, June 1989.

35 Globus, 18 June 1993: 2, 9–10.36 Hayden, R. M. (1993) “The Partition of Bosnia and Herzegovina, 1990–93.” RFE/RL

Report on Eastern Europe 2(22): 1–14.37 Trickovic, D. (1993) Yugoslavia and the Rise of Volkgeist. The Curtain Rises: Rethink-

ing Culture, Ideology and the State in Eastern Europe. H. DeSoto and D. Anderson. Atlantic Highlands, NJ.

14 chapter one

torturers.38 On the other side, Croat cartoonists portrayed Serbs who opposed any aspect of the Croatian nationalist program as Četniks.

The inflammatory nature of the Serb and Croat portrayals of each other as Ustašas and Četniks received credibility by the adoption of Ustaša and Četnik images, symbols and uniforms by some political figures in Cro-atia and Serbia. The fall of communist rule and the end of its suppres-sion of these symbols and images pulled the stakes from the hearts of these fascist vampires. In the summer of 1990, a magazine appeared on the streets of Belgrade called Great Serbia: The Newspaper of the Serbian Četnik Movement (Velika Srbija: Novine Srpskog Četničkog Pokreta). This paper was simultaneously anti-communist and avowedly Serbian irreden-tist: the cover of its second issue (August 1990) was a map of “Serbian lands” that included virtually all of Yugoslavia except Slovenia, Istria and Croatia north of what would soon become a famous line for defining Ser-bian territorial pretensions, from Karlobag to Karlovac to Virovitica. This same issue carried a facsimile of a letter from America by Father Momčilo Djujić, widely regarded as a Četnik war criminal, proclaiming the leader of the Serbian Četnik Movement, Dr. Vojislav Šešelj, to be a Četnik Vojvoda, the highest military rank in the Serbian army in World War I, adopted by the Četniks of World War II as their highest rank. The third issue carried a Četnik deaths-head flag on its cover, again a reversion to the 1940s. By this time, Četnik insignia and symbols were being openly sold in Belgrade, and street singers were singing Četnik songs that had been banned for more than forty years. Less than a year later, a Četnik gathering attracted people who wore the clothes and long hair of the 1940s Četniks, displayed the deaths-heads flags, and waved the knives that the earlier Četniks had made famous for massacres.39

Similar neo-fascist movements were arising in the other republics. In Croatia, the newspaper Globus ran a cover of two youths wearing Ustaša uniforms, which was much reproduced in Serbia.40 At the same time, Ustaša paraphernalia came to be sold as openly in Croatia as Četnik mate-rial in Belgrade.

In the increasingly tense political climate of 1990–91, the invocation of Četnik and Ustaša images was inherently loaded. In Croatia, the newly formed Croatian Democratic Union of Dr. Franjo Tudjman maintained an

38 For examples of the most inflammatory, see Banac, I. (1992) “The Fearful Asymmetry of War: The Causes and Consequences of Yugoslavia’s Demise.” Daedalus 121: 141–174.

39 Vreme, 20 May 1991: cover story.40 See, e.g. Džadžić, P. (1991) Nova ustaška država. Beograd.

national stereotypes in the wars in yugoslavia 15

uneasy relationship to the former Croatian state. Tudjman never praised the Ustaša; yet at the founding meeting of his party he referred to the wartime fascist state as an expression of the “legitimate aspirations of the Croat people.”41 His party also insisted on adopting state symbols (flag, anthem) that were similar or identical to those of the earlier fascist state.42 Tudjman’s motives may have been primarily based on the need to please his émigré funders. Nevertheless, the symbolism of the new Croat state was perceived as threatening by many Serbs, an impression helped along by the efforts of the propaganda machine in Serbia. Tudjman’s attempt in August 1990 to impose these symbols on the Serbs of rural Croatia, in the mountainous region of Lika, provoked an armed uprising there that really began Yugoslavia’s descent into war.43

As tensions rose in the last months before the war began, in the winter and spring of 1991, the terms “Četnik” and “Ustaša” were increasingly used in both the controlled press and in popular speech, as the Croat term for Serbs and the Serb term for Croats. When war broke out, claimants to the heritage of the 1940s movements began to act out the horrors of their predecessors. “Četniks” under “Vojvoda” Šešelj attacked Croatian towns in 1991 and Bosnian ones in 1992. Self-identified Ustašas attacked Serb towns in Croatia in 1991 and in Bosnia in 1992. In a real sense, the images of 1941–45 provided the role model and justification for atrocities by these forces.

This is not to say that the specifics of the Četnik and Ustaša identities remained exactly what they were fifty years earlier. Despite their invoca-tion of earlier movements, the actual identifying symbols of the Četniks and Ustaša of the 1990s were different from those of the 1940s. Most of the new Četniks did not wear long hair; indeed, “Vojvoda” Šešelj was as clean shaven as any Ustaša.44 Neither did the neo-Ustaša wear uniforms like those of the 1940s. However, the conscious invocation of their fascist predecessors was the symbolic act of supreme significance.

41  Denich, B. (1994) “Dismembering Yugoslavia: Nationalist Ideology and the Symbolic Revival of Genocide,” American Ethnologist 21: 367–390.

42 In a continued display of utter disregard for the feelings of Serbs, Jews and other non-Croat minorities, in May 1994 the Tudjman regime resurrected the kuna as a monetary unit (New York Times, May 28, 1994). The only use of the kuna as currency in many centuries had been in the fascist state of 1941–45.

43 Glenny, M. (1992) The Fall of Yugoslavia. London, Penguin.44 The writer Vuk Drašković, with Šešelj one of the founders of the renewed Četnik

movement, did have the hair for the role. After splitting with the Vojvoda, however, Drašković moderated many of his political opinions and cut some of his hair.

16 chapter one

These all too real neofascists provided an explanation for the extraor-dinary violence that engulfed Yugoslavia at the end of 1991, rendering the fictitious Kurds, Sikhs, Palestinians and others superfluous, and they dis-appeared from the papers. By autumn, what had seemed impossible dur-ing the summer had become reality: the Serbs and Croats, Yugoslavs no longer, were killing each other in large numbers.

The denial of their identity as both “Yugoslavs” as well as Croats, Serbs, Slovenes, Muslims, Macedonians and others was key to the transforma-tion of brotherhood to enmity, unity to war. Despite its empirical falsity, as seen in the high rates of intermarriage in the mixed regions through the 1980s, the ideology that triumphed politically in the 1990 elections was premised on the incompatibility of the Yugoslav peoples. The pre-sumption that there could not be a joint state of Serbs, Croats and others was as applicable to the mixed regions of Croatia and Serbia as it was to Yugoslavia itself. Thus the war in Croatia took place almost entirely in these areas, which were no longer conceivable by either the Serb or Croat ideology, and was largely about unmixing them, a process that required extreme violence. It has been successful, however, with Croats leaving areas controlled by Serbs, and Serbs leaving those controlled by the gov-ernment of Croatia.45 In cities and in other areas where the minority is so small as to be powerless, they are subjected to discrimination and severe pressure to leave. Thus in Croatia, only about 150,000 of the 570,000 Serbs registered as living in Croatia in the April 1991 census remain in areas controlled by the government of Croatia, while at least 312,000 Serbs lived in those areas before the war began.46 According to Tadeusz Mazowiecki (1993), U.N. Special Rapporteur on Human Rights in the Former Yugo-slavia, Serbs are subject to discrimination, lack of police protection, and other forms of government harassment, as are Croats and Muslims in Serb-controlled parts of the former country. The point is to drive people of the wrong ethno-national background out of the state, which is defined against them.

45 Mazowiecki, T. (1993). Situation of Human Rights in the Territory of the former Yugo-slavia: Fifth Periodic Report. Geneva, United Nations Commission on Human Rights.

46 The figure on Serbs living before the war in the areas of Croatia now under gov-ernment control is derived from data given in a publication of the Government of Croa-tia: Crkvenčić, I. and M. Klemenčić (1993) Aggression Against Croatia: Geopolitical and Demographic Facts. Zagreb. The figure of 150,000 remaining in these regions is the mean between estimates provided to me in interviews in Zagreb in March 1994 by Serb political figures in Croatia (100,000) and leading members of the Croatian government (200,000).

national stereotypes in the wars in yugoslavia 17

The war in Bosnia followed the same logic of partition.47 The Serbs, Croats and Muslims partitioned themselves politically in the 1990 elec-tions, voting overwhelmingly for separate nationalist parties. The Serb and Croat leaderships having agreed to divide Bosnia and Herzegovina between them, the war was the logical consequence of the presupposition that a joint state of Serbs, Croats and others could not exist. The infamous campaigns of “ethnic cleansing” were in reality aimed at effecting this par-tition by the forced removal of populations no longer fellow Yugoslavs, but only Others. The process was analogous to the partitioning of the Punjab in 1947, when the triumph of the “two nation” theory, denying the kindred nature of Muslims and Hindus in India,48 led to the creation of Pakistan. However, in Bosnia, the pious assertion by the European Community and the US that partition of Bosnia could not take place, when in fact the par-tition of Yugoslavia made it inevitable, made the process worse than in Punjab in 1947. The external recognition of an independent Bosnia, when it was rejected by a large proportion of its own citizens, had to mean war; either to impose the state on those who rejected it, or to ensure that they were not trapped in the state that they rejected. Since the former outcome was never likely, recognition only ensured the more brutal destruction of the Bosnia and Herzegovina that had existed within Yugoslavia.

The Structure of Permanent Opposition: Symbolic Geography in the Balkans and of the Balkans

The transformation of Četniks and Ustašas from horror story to horrible reality took place within a wider context of symbolic divisions within

47 Hayden, R. M. (1993) “The Partition of Bosnia and Herzegovina, 1990–93,” RFE/RL Report on Eastern Europe 2(22): 1–14.

48 The description by Chandra et al. (pp. 428–429) of the period of “extreme commu-nalism” in pre-partition India is relevant for Yugoslavia in 1991: “Extreme communalism was based on the politics of hatred, fear psychosis and irrationality. The motifs of domi-nation and suppression, always present in communal propaganda . . . increasingly became the dominant theme of communal propaganda. A campaign of hatred against the fol-lowers of other religions was unleashed. The interests of Hindus and Muslims were now declared to be permanently in conflict. . . . Phrases like oppression, suppression, domina-tion, being crushed, even physical extermination and extinction were used. The commu-nalists increasingly operated on the principle: the bigger the lie, the better.” Chandra, B., K. M. Panikkar, et al. (1989) India’s Struggle for Independence. Delhi, Penguin. One need only replace the words “communalism” and “communalists” with “nationalism” and “nation-alist,” and “Hindus and Muslims” with “Serbs and Croats,” to apply this description to Yugoslavia.

18 chapter one

the former Yugoslavia and within the wider structures of Europe. Gene Hammel’s argument, that ethnic classification in the Balkans is “not strictly an endogenous process but either exogenously imposed or endogenously shaped in response to exogenous pressures,”49 thus becomes relevant.

While it might seem more logical to begin consideration of the relation-ship between endogamous classifications and exogenous factors by look-ing first at the wider structures, I will look first at the symbolic geography invoked within Yugoslavia to justify actions by local political figures, and then show the parallel invocations by those outside of the country to jus-tify their own actions. By “symbolic geography” I mean the transformation of a geographical category into a normatively laden label. Thus while “the Balkans” can be used to refer to a specific range of mountains in Bulgaria, the term has wider resonance and implications that are clearly not neutral but rather, in western Europe, negative. In this section of the paper I do not pretend originality, being heavily dependent of the works of Milica Bakić-Hayden (1993), Maria Todorova (1993 and 1994) and Tomislav Longinović (1993), and an earlier paper that I co-authored (Bakić-Hayden and Hayden 1992).50

The most striking feature of political debate in the former Yugoslavia in the late 1980s was the utilization of a symbolic geography of literal ori-entalism, premised on the presumed superiority of “western” culture over “the east.” This is hardly a new feature of discourse within Europe. The presupposition that cultural features from northern and western Europe were superior to those from the south or east has a long tradition. Within Yugoslavia itself, this presupposition was manifested in the late 1980s in what Milica Bakić-Hayden has called a set of “nesting orientalisms,” in which each group claimed superiority over its neighbors to the south and east. Thus, she outlines a “logic of disparagement that exists in the relation of Europe as a whole to the Orient ‘proper;’ of Europe ‘proper’ to Oriental Europe, i.e. the parts of Europe that were under oriental Ottoman rule; of parts of Yugoslavia ruled by Europe ‘proper’ to parts ruled by Orientals and hence ‘improper;’ and finally of those ‘improper’ parts of Christian Europe to Orientals ‘proper,’ European Muslims who further distinguish themselves from the ultimate Orientals, the non-European Muslims.”

49 Hammel, E. A. (1993) “Demography and the origins of the Yugoslav civil war.” Anthro-pology Today 9: 4–9.

50 All three papers were published later and I omit the citations to them as conference presentations [2011].

national stereotypes in the wars in yugoslavia 19

By this logic, Slovenes proclaimed themselves superior to južnjaki (“southerners”), known more pejoratively as “Bosnians,” a category that included everyone not Slovene. Croats proclaimed themselves superior to Serbs, Muslims and Macedonians; Serbs to Muslims and Macedo-nians; Bosnia’s “secular Muslims” to the “real” Muslims farther east. All proclaimed themselves to be “European,” but this claim was denied by each group for those to its east and south. Thus to Slovenes, everyone else in Yugoslavia was from “the Balkans” while they themselves were on “the sunny side of the Alps” (a label skewered neatly by the independent Belgrade newsmagazine Vreme in a 1992 story viewing Slovenia as “the African side of the Alps”). For Croats, their distinction from “the Balkans” was an article of faith. Serbs, not able to disclaim “the Balkans,” noted that the Balkans are in fact in Europe, despite the protestations of the Slovenes and Croats on that point.

It is precisely on that point, however, that the wider symbolic geogra-phy of Europe comes into play. West Europeans’ arrogation to themselves of the power to define “Europe” has been accepted by East Europeans, in perhaps as fine an example of hegemony as any Gramscian could hope to find. For present purposes, however, what is most interesting is the attempt to deny that “the Balkans” are in Europe.

Part of the argument goes towards the “aggressive nationalism” of the Balkans peoples, and their supposed propensity towards violence.51 Nei-ther image is new, of course, but their persistence as peculiarly Balkan characteristics is striking. Considering the record for violence of the mem-bers of the European Community in this century and the fact that one of them developed the art of ethnic cleansing to its perhaps ultimate degree of technical efficiency, the association of the Balkans with extreme vio-lence is ironic at best. Nor is America immune on this score. As Maria Todorova has noted, the Balkans’ reputation for violence stems from the two Balkans wars of 1912 and 1913; but in the seventeen days of the Gulf War in 1991, the U.S. managed to kill about twice as many Iraqis as all the casualties on all sides in those wars.

The divisive nationalism of the Balkans may be more apt; yet this, too, deserves greater analysis. What is apparent is that the strategic location of the region is the reason for the convergence of the fault lines of European religions and empires in the Balkans. These fault lines, in turn, render the Balkans peoples prime candidates for manipulation by greater powers.

51 See, e.g., Kennan, G. (1993) “The Balkan Crisis.” New York Review of Books.

20 chapter one

The point is not, as George Kennan would have it, that the Balkan peoples exhibit “deeper traits of character inherited, presumably, from a distant tribal past,”52 nor less that, as Samuel Huntington arrogantly asserts (but does not argue!), these peoples are at the interface of two “civilizations,” defined by insurmountably different values.53 Quite apart from the lit-eral and figurative truth of Alija Izetbegović’s (1992) plaintive reminder at the London Conference in August 1992, that “Bosnia-Herzegovina is a European country, and its people are European people,” the smug positions of Kennan and Huntington ignore the common appeal of fas-cism in these supposedly incompatible civilizations. Izetbegović himself knew better: “even the evil inflicted upon us does not come from Asia, but has a European origin. . . . [F]ascism – which is racism and extreme nationalism – and bolshevism – total absence of a feeling for law and justice . . . are European-made products.”54

In Bosnia’s tragedy, the Serbs to their shame have apparently acted in the 1990s precisely the way the Croats did in the 1940s; yet they are sup-posedly on opposite sides of the civilizational border. Oddly enough, Hun-tington fails to list “Romanticism” along with the Enlightenment in his list of “the common experiences of European history,” although Herder and Hegel may be more relevant to European nationalism than any Enlighten-ment figures, and probably explain why the Enlightenment was so little illuminating in the 1930s. But the relevance of Herder and Hegel also cuts across the “civilizational” boundaries that Huntington would see as definitive.

Rather than looking to tribal traits or civilizational differences to explain the divisive nationalism of the Balkans, one might consider the dangers from foreign force and influence in a strategic area in which differences of religion or dialect may be presented, as per Herder, as marking national differences, hence deserving of separate states. The consequences of such division may be seen in that classic treatise of Enlightenment politi-cal thought, the Federalist Papers,55 nos. 2–8, on the dangers of foreign

52 Ibid.53 Huntington, S. P. (1993) “The Clash of Civilizations.” Foreign Affairs 72: 22–49.54 Izetbegović, A. (1992) Opening Statement Delivered at the London Conference on

the Former Yugoslavia.55 The Federalist papers, written by Alexander Hamilton, John Jay and James Madison

in 1787–88 as arguments in favor of adoption of the American constitution, and the most important works of political theory to come from the American experiment in establishing democracy at the end of the 18th century. The writers were utterly pragmatic, recogniz-ing the fallibility of human nature, as reflected in the line quoted on “Utopian thought.”

national stereotypes in the wars in yugoslavia 21

influence on and of war between closely linked states if they were to sepa-rate. Hamilton’s scornful comment in Federalist 6, that “A Man must be far gone in Utopian speculations who can seriously doubt that if these states should either be wholly disunited, or only united in partial confed-eracies, the subdivisions into which they might be thrown would have frequent and violent contests with each other,” was as applicable to the Yugoslav republics in 1991 as it was to the American states in 1787. Appar-ently, however, the E.C. members were so far gone in the Utopian specula-tion of Maastricht as to miss this point.

Or have they? The interplay first of the E.C. countries themselves, then of the E.C. plus the U.S. (NATO) with the Russians, has been intriguing and troublesome. Within the E.C., the Germans were willing to sacrifice the Community’s newly proclaimed unity in December 1991 in order to recognize Croatia and Slovenia, which coincidentally had been parts of the Austro-German spheres of influence until 1919 and from 1941–45. Since a major point of creating both Yugoslavia and Czechoslovakia in 1919 and recreating them in 1945 had been to control German influence in south-central Europe, the destruction of these countries amounted to reversing a major element of the Versailles settlement.56 Since then, Croa-tia is clearly a German client, Slovenia an Austrian one. As matters have worsened over Bosnia, U.S. analysts have tended more and more to view the whole conflict as polarized between “the West” (= NATO) and Rus-sia, supposedly the “traditional ally of the Serbs”; although the U.S. was also Serbia’s ally in 1914 and 1941, and in 1948 the Soviets had threatened to invade Yugoslavia! In any event, by 1994 it was clear that the Balkan conflict was being viewed in traditional geopolitical terms by the various major external actors, which perhaps explains why their efforts have been so badly coordinated, and so stunningly unsuccessful at preventing the break-up of Yugoslavia, preventing war, or ending the war.

An adequate analysis of nationalism in the Balkans would thus have to consider the ways in which local politicians have played off of those

Their own opinion was summed up in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Such an idea of limited, controlled government is clearly not in the minds of most of those in control of the formerly Yugoslav republics.

56 See Hayden, R. M. (1992) “Yugoslavia’s Collapse: National Suicide with Foreign Assis-tance.” Economic & Political Weekly: 1377–1382.

22 chapter one

differences that do exist to argue for separation, in a context in which such arguments may be welcomed by outside powers. The geopolitical fate of the Balkans has always been to be the locus of definition of spheres of influence. Yet these have to be justified by more than simply force. In this context, assertions like those of Huntington have their utility not because of their descriptive accuracy, but rather because of their prescrip-tions: “the West,” a priori the best, must guard against “the rest,” in part by “incorporating into the West societies in Eastern Europe . . . whose cultures are close to those of the West.”57 Yet this incorporation requires exclusion of “the Others.” Thus the stress on creating what are de facto new bor-ders under the guise of recognizing old ones. They are new because they were unimportant in the recent past, but now become the front line of the western empire.

The point is that extreme nationalism pays, not because of civilizational or tribal differences among the Balkan peoples, but because the asser-tion that such differences exist may be useful in gaining external support for one’s movement, and even international recognition. Here the con-cept of “self-determination,” so often invoked in Yugoslavia from 1989–91, becomes its inversion, because by asserting the need for independence on the grounds of self-determination, the leaders of the various Yugoslav peoples have made themselves and their followers pawns in the political games of larger powers.

The victims, of course, have been predominantly the residents of the new border regions. Their intermingling was contrary not only to the nationalist ideologies of the Yugoslav peoples themselves, but also to the imperial ideologies of writers such as Huntington. These people could have lived together if permitted to do so. Yet to admit this fact would have undercut the basic premises of not only the separate nationalist ideologies, but of the geopolitical struggles in “the Balkans.” Borders had to be created between these peoples, or the ideologies of “nation” and “civilization” would be meaningless. Thus local political actors, with the assistance of outside powers, redefined the Yugoslav republics in ways that meant destroying not only the joint state, but those areas where peo-ples were most mixed. The stereotypes involved became, in fact, destiny, as the worst features of each become realized in self-fulfilling prophecy, accepted both at home and by foreigners.

57 Huntington, S. P. (1993) “The Clash of Civilizations.” Foreign Affairs 72: 22–49.

national stereotypes in the wars in yugoslavia 23

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Aarons, M. and J. Loftus (1991). Ratlines. London, Mandarin.Andrejevich, M. and G. Bardos (1992). “The Media in Regions of Conflict: Serbia and Mon-

tenegro.” RFE/RL Report on Eastern Europe: 86–91.Bakić-Hayden, M. and R. M. Hayden (1992). “Orientalist Variations on the Theme ‘Bal-

kans:’.” Slavic Review 51(1): 1–15.Banac, I. (1983). The National Question in Yugoslavia: Origins, History, Politics. Ithaca, NY,

Cornell University Press.—— (1992). “The Fearful Asymmetry of War: The Causes and Consequences of Yugos-

lavia’s Demise.” Daedalus 121: 141–174.Botev, N. and R. A. Wagner (1993). “Seeing Past the Barricades: Ethnic Intermarriage in

Yugoslavia in the Last Three Deacades.” Anthropology of East Europe Review 11: 27–34.Burg, S. L. (1983). The Political Integration of Yugoslavia’s Muslims: Determinants of Succes

and Failure. Pittsburgh, University of Pittsburgh Center for Russian & East European Studies.

Burg, S. L. and M. Berbaum (1989). “Community, Integration and Stability in Multinational Yugoslavia.” American Political Science Review 83: 535–554.

Chandra, B., K. M. Panikkar, et al. (1989). India’s Struggle for Indepemdemce. Delhi, Penguin.

Crkvenčić, I. and M. Klemenčić (1993). Aggression Against Croatia: Geopolitical and Demo-graphic Facts. Zagreb.

Denich, B. (1994). “Dismembering Yugoslavia: Nationalist Ideology and the Symbolic Revival of Genocide.” American Ethnologist 21: 367–390.

Djilas, A. (1991). The contested country: Yugoslav unity and communist revolution, 1919–1953. Cambridge, Mass., Harvard University Press.

Djukić, S. (1992). Kako se dogodio narod. Beograd.Džadžić, P. (1991). Nova ustaška država. Beograd.Glenny, M. (1992). The Fall of Yugoslavia. London, Penguin.Hammel, E. A. (1993). “Demography and the origins of the Yugoslav civil war.” Anthropol-

ogy Today 9: 4–9.—— (1993). “The Yugoslav Labyrinth.” Anthropology of East Europe Review 11: 39–47.Hayden, R. M. (1991). “Yugoslavia: Politics and the Media.” RFE/RL Report on Eastern Europe

2(49): 17–26.—— (1992). “Constitutional Nationalism in the Formerly Yugoslav Republics.” Slavic

Review 51(4): 654–673.—— (1992). “Yugoslavia’s Collapse: National Suicie with Foreign Assistance.” Economic &

Political Weekly: 1377–1382.—— (1993). “The Partition of Bosnia and Herzegovina, 1990–93.” RFE/RL Report on Eastern

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Former Yugoslavia.Karger, A. (1992). “Die Serbischen Siedlungraume in Kroatien.” Osteuropa 42: 141–146.Kennan, G. (1993). “The Balkan Crisis.” New York Review of Books.Markotich, S. (1993). “The Situation of Serbs in Croatia.” RFE/RL Report on Eastern

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Culture, Ideology and the State in Eastern Europe. H. DeSoto and D. Anderson. Atlantic Highlands, NJ.

CHAPTER TWO

RECOUNTING THE DEAD: THE REDISCOVERY AND REDEFINITION OF WARTIME MASSACRES

IN LATE- AND POST-COMMUNIST YUGOSLAVIA

The peculiar importance of history to the regimes of Eastern Europe is well known. In what has been described as an “ethnic shatter zone,” the myths of nation that have been used to justify the creation of nation-states pro-duced nationalist(ic) ideologies that played on the alleged superiority of a particular group and its long, mystical connection with a particular coun-tryside – usually more of the countryside than members of that nation currently controlled (see, e.g., Jelavich 1990; A. Djilas 1991).1 The various Yugoslav nations fell easily into this pattern, developing in the nineteenth century separate nationalist ideologies that contested with the simultane-ous development of the idea of Yugoslavism, of one state incorporating all of the South Slavic nations. The tension between these individual national ideologies and that of Yugoslavism left the first Yugoslavia (1920–1941) a tenuous, unstable state from almost the moment of its birth (Banac 1984; A. Djilas 1991), and ensured that the Second World War in Yugoslavia was a brutal, multifaceted blend of resistance to occupation, civil war and communist revolution.2 While individual nationalisms were largely sup-pressed during most of the period of communist rule (1945–1990), they came roaring back in the late 1980s, leading to, first, the disintegration of the League of Communists of Yugoslavia (LCY) into separate, republican-based national(ist) communist parties in 1989–90, and then the election of openly nationalist(ic) non-communist parties in the elections of 1990.3

1 Since I take the general point to be so well known as to not need substantiation, I will limit the references in this paper to recent works dealing with Yugoslavia.

2 The history of the period 1941–45 in Yugoslavia is now being addressed by revision-ist historians of all nationalist persuasions. A highly readable account by a highly placed communist participant is M. Djilas’s Wartime (1977), a book that has the cachet of having been banned, along with Djilas’s other works, by the communist regimes in Yugoslavia until 1989.

3 This last generalization requires the usual Yugoslav qualifications about regional variation. Thus Slovenia elected a communist but nationalist president along with an anti-communist nationalist parliament, Serbia elected a new Socialist Party formed by the leadership of the old communist party and inheriting all of that party’s substantial tangible assets, while Montenegro elected the old League of Communists. The common thread was

26 chapter two

The resurgence of nationalism in Yugoslavia is a particularly fascinat-ing subject for the examination of secret or hidden histories, for several reasons. First, the initial development of nationalist political strategies in the late 1980s was a product of intellectuals and politicians who operated within the still-hegemonic communist parties of the various republics,4 particularly Slovenia and Serbia. While these actors made use of secret histories, their doing so was part of an effort to establish or maintain con-trol of the ruling League(s) of Communists; through subversion rather than resistance. However, once this effort had succeeded in breaking the League of Communists of Yugoslavia into separate national communist parties in each republic, this same nationalism was used to discredit, first, the communists in most of the republics and, second, the unified Yugo-slav state itself. Thus, in Yugoslavia in the 1980s and early 1990s, we can see the invocation and manipulation of hidden and oppositional histories from within and without the state socialist power structure. In both cases, “private knowledge” that had been long suppressed was used to challenge the versions of events that had been carefully constructed and officially approved during the communist period.

There is, however, another reason why late- and post-communist Yugo-slavia provides an interesting case study in the use of secret histories. While the demise of state socialism in Eastern Europe is clearly the end of one kind of totalizing state, the creation of “civil society” is not automatic (see, e.g., Kligman 1990). Instead, in at least some of the national(ist[ic]) political milieus of Eastern Europe, the totalizing socialist state is in

not the ideology of political economy, however, so much as it was that of nation; even the communists had abandoned the ideology of class struggle for that of each nation.

4 One of the most confusing elements of Yugoslav politics in the late 1980s was the rela-tionship between the League of Communists of Yugoslavia, which operated at the level of the federation, and the separate Leagues of Communists of each of the republics/autono-mous provinces. The relationship was originally based on the principles of “democratic centralism” and was thus hierarchical, and one had membership primarily in the federal LCY (to which dues were paid) and only through that membership in the republican/provincial Leagues. However, in 1989–90 the republican Leagues of Slovenia and Croatia demanded a “confederalization” of the LCY into a “League of Leagues,” in which no bind-ing authority issued from the central LCY, which would have eliminated the LCY as a party. When this demand was rejected at the “14th Extraordinary Congress” of the LCY in late January 1990, the Slovenes and Croats walked out of the Congress, thus destroying the LCY (see Rusinow 1991: 5–6). The Slovenian/Croatian ultimatum, “confederation” or seces-sion, was repeated at the constitutional level by the republican governments in 1990/91 (see Hayden 1990a; Rusinow 1991). Since “confederation” meant the end of Yugoslavia as a state, it was resisted by other republics, notably Serbia, in reaction to which Slovenia and Croatia seceded, thus sparking the civil war of 1991.

recounting the dead 27

danger of being replaced by a totalizing nationalist one. As one Slovenian writer has put it, with an eye towards Yugoslavia, “[n]ationalism. . . . only exchanges the ideology of the universal liberation of ‘the working class’ for the ideology of ‘total national sovereignty.’ This is not in any sense a matter of rational categories, but rather of sovereignty as a value in itself, as the highest value, the cost of which is irrelevant.” (Šetinc 1990: 17). This replacement of one totalizing ideology with its structural opposite necessitates a supplanting of official history.5 However, since that official history had some basis in experiences still within living memory, this replacement of communism with nationalism must itself create a new secret history of the communist movement and period of rule. Indeed, to succeed, the new official history must convert the “social memory” (see Connerton 1989) underlying the old official history into a secret archive, officially both denied and suppressed. Thus in considering late- and post-communist Yugoslavia, we may examine a dialectic between the compet-ing official histories necessitated by competing totalizing ideologies, each of which will produce a corollary secret history.

In the space of a paper it is not possible to cover in detail both the use of secret histories by political actors within the communist regimes in the several republics and the later use of accounts of long-suppressed mas-sacres to undermine the old history of the communist revolution and to justify the new nationalisms within each republic. These efforts to revise the hegemonic history approved by the LCY were quite different, since the first attempts to do so were aimed at undermining the totalizing com-munist states in an attempt to create a pluralistic, democratic Yugoslavia, while the later revisionists were trying to use hidden histories to justify the dismemberment of Yugoslavia into separate nation-states (see also Hayden 1991a). Nevertheless, since the second process was dependent on the earlier occurrence of the first revisions of official history, a brief account of the first use of hidden histories to challenge LCY historical orthodoxy is necessary.

5 While the subject cannot be addressed here, it is becoming clear that communism and nationalism, as totalizing ideologies meant to deal with the problems of industrializa-tion and modernization, were structural opposites, consciously so in the minds of some of the major designers of each. Thus Marx may have consciously tried to refute theories that had the nation, rather than the class, as the driving force of history (see Szporluk 1988), while Hitler copied elements of Marxism but replaced the class struggle with a race struggle (see Dumont 1986).

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Undermining the Myth of the Infallible Party: 1982–87

The first point to be made about the use of secret histories by political actors within the one-party system was that it arose only as the LCY’s control over society was weakening. In the 1980s, more or less coinciden-tally after the death of Marshall Tito, Yugoslavia entered a period of “per-manent crisis,” with a stagnating economy, inflation that reached hyper levels by 1989, and rising unemployment (see Rusinow 1988). What began as an economic crisis gradually became a political one as writers began increasingly to link the troubles of the Yugoslav economy with the cum-bersome nature of the “self-management socialism” system that Yugosla-via had institutionalized in the constitution of 1974 (see, e.g., Mirić 1984), and which was one of the country’s primary sources of international and intellectual prestige. This was the “socialism with a human face” that had been prohibited to the rest of Eastern Europe by the Brezhnev doctrine.6

At the same time that the “permanent crisis” was weakening the image of self-management, there began a number of journalistic and literary forays into occurrences during the war and the period of the break with Stalin in 1948, which had not been permitted in Yugoslav public debates until that time. Thus the major Serbian weekly NIN, began a long series of articles in 1982 on the prison camp on Goli Otok, set up by Tito’s govern-ment in 1948 to house those who sided with Stalin in the great quarrel between the two leaders. These articles were based on accounts of and by survivors of the camp, including interviews with some of these people. While the existence of this camp had never been denied, the nature of the cruelties practiced there, and the sheer numbers of people sent there on the basis of little or no evidence, came as a shock to the Yugoslav public.

The newspaper revelations about Goli Otok were followed by a number of more artistic, literary treatments of taboo topics. The Yugoslav nomi-nation for the 1986 Academy award for best foreign film, one of the five finalists that year and winner of the Golden Palm at Cannes, was a frank account of the injustices of the period following the break with Stalin,7 while the country’s nominee the following year, though not as success-ful internationally, was a story about the same period that cast very thinly veiled aspersions on the actions of the communist party and the

6 The sources on Yugoslav self-management are truly vast. The single best introduction to the study is Rusinow’s The Yugoslav Experiment (1978).

7 Otac na službenom putu [When Father was away on Business].

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government. The plot of the film showed the communists acting without scruples or principles in their efforts to remain in power, while an allegori-cal strain showed the communists to be fools in their efforts to establish the “new socialist man.”8 In 1988, another film became the first to treat sympathetically the urban bourgeoisie, who had been among the most victimized by the communists through expropriation, ruinous taxation and class-based discrimination.9 On a more current topic, a young writer published a novel on the ethical and moral problems faced by an honest judge in a politically charged judicial system (Drašković 1981).

A different attack on the system was mounted by journalists in 1988, when they “discovered” the curious case of Andrija Gams, formerly pro-fessor of law at Belgrade University who had been forced into retirement in 1971. The cause of Gams’ fall was a withering attack on the concept of “social property,” the conceptual key to the theory of socialist self- management (see Hayden 1990: 33–37), that he had made at the time of the drafting of the 1974 constitution. Gams had finished a treatise on property at that time, but was not permitted to publish it. However, in 1986, Gams’ book was finally published – and in 1987, it won a major prize for writing on social criticism! The story of Gams’ travails was highly publicized in connection with this award, thus transferring his own history from the hidden realm of the purely personal to that of public knowledge.

These various works are only samples of the kinds of criticisms, schol-arly, journalistic and literary, that challenged the LCY’s version of the past in the 1980s. Most of these criticisms, which were directed at an all-Yugoslav audience and sometimes an international one as well, were aimed only at undermining communism and not at building nationalist sentiment. Clearly, there were aspects of the works in these various genres that made them mutually reinforcing. In the initial stages of the develop-ment of this critical corpus, literature could perhaps be most evocative and most bold. Literary works that criticize official history both activate and depend on secret histories for their effectiveness. That is, the stories of the fictional characters are most moving when they most resonate with the audience’s unexpressed social memory, or with what everyone knows but no one can state. Because of its visual impact, film may be among the most effective media for the evocation of secret histories, when the struc-ture of the film itself may become a “commemorative ceremony” for social

8 Srečna nova godina, 1949 [Happy New Year, 1949].9 Bal na vodi (released in the United States as “Hey Babu Riba”).

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memory that cannot be directly expressed (cf. Connerton 1989).10 At the same time, the power of the film will be enhanced as public accounts of past history begin to recognize the elements previously suppressed. In Yugoslavia in the early 1980s there seems to have been a kind of feedback effect at work, with scholarly and journalistic re-examination of what had until then been settled history, and artistic exploration that went past these initial, often cautious, re-examinations.11

Nationalism in the Late 1980s: The Case of Serbia12

With the weakening of the established paradigm of self-management socialism, the turn to nationalism by Yugoslavia’s political elites is not surprising. One of the first major political moves in that direction, how-ever, was made by communist politicians in Serbia in 1987. In fact, Serbia may have been the republic most disadvantaged by the constitution of 1974, which had otherwise decentralized the country to the point of con-federation. Where the other republics received almost complete powers, including the exclusive power to execute federal powers in their respec-tive territories, Serbia was handicapped by the strengthening of the two “autonomous provinces” within its borders. These provinces, Kosovo and Vojvodina, were virtually independent of Serbia, and could pass legisla-tion without review by the Serbian parliament. Serbia, on the other hand, could pass its own legislation only with the consent of both provinces. Further, the provinces each had their own independent representations in

10 The Soviet Georgian film Repentance may stand as emblematic of this use of film as commemorative ceremony. While regarded internationally as an allegory of Stalin’s ter-ror, the film also works for Georgians as an allegory of their larger historical and cultural struggles and of the basic moral issues that underlie them (see Christensen 1991).

11  Of course, pointing out the feedback does not account for the initial opening of the door to these dissident accounts. Perhaps the best explanation for the collapse of the cen-sorship that had previously kept these particular histories secret was the exhaustion of both the ideology of communism and a corresponding failure of the will of the ruling class (see Ash 1990); but this failure would have been accelerated by the new revised (and revived) history.

12 In analyzing Serbia, I do not want to imply that that republic exhibited a unique revival of nationalism. Slovenia in particular was developing its own variety of right-wing nationalist movement (see, e.g, the “Slovenian National Program” in Nova Revija no. 57, and Hribar 1989). An account of the development of the Slovenian nationalist movement, by one of its major participants, can be found in Rupel (1990). A more critical view of some of the rhetorical structures of Slovenian nationalism is contained in Bakić-Hayden and Hayden (1992).

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federal executive and legislative bodies, representations that, combined, were greater than that of Serbia.

Within Serbia in the 1980s, there was increasing awareness and resent-ment of the positions of the provinces of Kosovo and Vojvodina and the loss of Serbian control over territories that were, in theory, still part of the republic. The resentments were particularly acute in regard to Kosovo, once the heart of the medieval Serbian kingdom, site of the great defeat of Serbian forces in 1389 that led to the five hundred years of Ottoman domi-nation. Kosovo, long inhabited by Albanians as well as Serbs and Monte-negrins and contested by all of them, was becoming increasingly Albanian as members of the other groups emigrated and the Albanian birthrate became the highest in Europe. Regardless of the actual cause of the non-Albanian flight from Kosovo, many Serbs blamed it on the actions of the provincial government, which was dominated by Albanians and was said to be abetting a campaign to drive non-Albanians out of the province.13 In 1981, the Kosovo Albanians began a campaign of resistance to Serbian domination, which Serbia met by increasing its police and paramilitary activities in the province. In this climate, the populist leader Slobodan Milošević, then President of the League of Communists of Serbia, was able to use the issue of Kosovo to come to power in a virtual nationalist coup within the Serbian League in October 1987 (see Djukić 1992; Čavoški 1991). Milošević thus accomplished a Ceauşescu-like transformation of a nomi-nally communist party into an openly nationalist one (cf. Verdery 1991).

By 1988, this Serbian resentment was taking public form as a question-ing of the very basis of the Yugoslav union, the “brotherhood and unity” of the Yugoslav peoples. A celebrated dissident philosopher published an article claiming to document an anti-Serbian program in the Communist Party of Yugoslavia before the war, with the implication that the same program was carried on by the LCY after the war (Tadić 1988). Along the same lines, another historian claimed to have found documents proving that right after the war, the communists had planned to give Kosovo to Albania. In the following year, intellectuals’ support of nationalism was manifested in a Memorandum by the Serbian Academy of Sciences and Arts that argued that Serbia was at a disadvantage within Yugoslavia, and proposed a program for Serbian national development. This Memorandum

13 Srdjan Karanović’s A Film With No Name (Za sada bez dobrog naslova), a dramatic film treatment of the hostility and lack of understanding of Serbs and Albanians in Kosovo was released in 1988, but was criticized by Serbian officials for being too even-handed.

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ignited a political battle between the leaderships of the various republics that was described by the Zagreb weekly news magazine Danas as a “ver-bal civil war.” Milošević, now President of Serbia (rather than of the Party), used the Kosovo issue as his primary weapon, capitalizing particularly on the six hundredth anniversary of the Battle of Kosovo in June 1989. In that year, however, he extended his approach to criticize the political acts that had put Serbia into such an unfavorable constitutional position in 1974. It was at this stage that other hidden histories came into play, with the rehabilitation of those who had criticized the 1974 constitution at the time it was being drafted, and who had been made to suffer for their criticisms. The major scandal had been the purge of the Belgrade Law Faculty in 1971 that had removed Andrija Gams and other professors, following a faculty symposium that had been highly critical of the proposed new constitu-tion. The issue of the Law Faculty’s journal that contained the papers from the symposium had been banned,14 and several of the most critical faculty members had been removed from the faculty, some into retirement, some simply into unemployment, some to jail. One of the last figures was sud-denly discovered in the summer of 1989, when interviews with him and stories about his trials appeared in major Serbian newspapers. By hav-ing these stories publicized, Milošević was able to depict Serbia as having been the victim of a conspiracy.

A second use of hitherto hidden histories came into play with the “dis-covery” that a number of factories and other economically important insti-tutions had been removed from Serbia in the years immediately following the Second World War, and set up in Slovenia and in other republics.15 This assertion was backed up with both documents and with personal accounts, which improved its credibility.

By the end of the 1980s, then, secret histories were being used in Serbia to bring into question the basic elements of Yugoslav communist ideol-ogy, but from within the League of Communists of Serbia. The point of the exercise was to hold on to power when the appeal of communism itself as an ideology was fast disappearing due to the economic chaos caused by the “permanent crisis.” By turning to nationalism, Milošević was able to stage a coup within the one-party system, replacing a traditional inter-nationally-oriented communist government with a nationalistic one and

14 The ban on Anali Pravnog Fakulteta u Beogradu no. 3 (May–June) 1971 was lifted in 1990, and the issue was reprinted.

15 See Intervju (Beograd), Potapanje Srbije. Special issue, 11 August 1989.

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taking over the form of communist rule while scrapping much of commu-nist ideology. The decentralized nature of Yugoslav politics, which placed virtually all power in the hands of the elites within republics that were defined on a national basis, made this nationalization of Yugoslav politics not only possible, but perhaps likely (see Woodward 1989; cf. Roeder 1991). While Milošević carried this process out first, he was merely a forerunner for the total collapse of Yugoslav politics into nationalistic antagonisms, which took place in 1990–91.

Counting the Bodies, 1990–91

One of the most potent weapons for building nationalism seems to be the uncovering of (semi-)hidden massacres. The transfiguration of the dead into martyrs is perhaps the most powerful mechanism of symbolic politics, and funerals provide a supreme moment for transforming ritual into political theater (see Esherick and Wasserstrom 1990). The discovery and celebration of martyrdom have thus taken prominence in nationalist politics in Yugoslavia in 1990–91. At the same time, however, and perhaps by necessity, the old martyrs to the wartime nationalism of communist historiography (Serbs killed by the Croatian regime, or Muslims killed by Serbian royalists) have been marginalized, and in at least some cases their martyrdom and perhaps even the fact of their deaths has been denied (see Denich 1991). The result of this new accounting of death and transfigura-tion of the dead has been to produce a propaganda war of competing nationalist histories of violence and injustice.

The most ferocious fronts in this war have been concerned with the vic-tims of the civil war of 1941–45, particularly the massacres of Serbs by Cro-ats and of Croats by Communists. Both fronts are focused on events in and surrounding the fascist “Independent State of Croatia” (Nezavisna Država Hrvatska, or NDH), and are centered on two revisions of the history estab-lished in the communist period. The first challenge has been to the moral superiority of Tito’s communist-led Partisans over the forces of the NDH. For this front, the major focus has been on newly acknowledged massa-cres of NDH troops and personnel by the communists in 1945. The second challenge has been to the moral inferiority of the NDH regime itself, par-ticularly in so far as that regime has been depicted as having been based on a uniquely vicious and virulent Croatian nationalism, incarnate in the Ustaša, the Croatian fascists who ran the NDH. In the political milieu of 1990 Yugoslavia, the first revision was actually not controversial in itself,

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but the second has incited a vehement response from Serbs, who have rediscovered Ustaša atrocities that had been hidden, at least officially, for fifty years.16 Thus, the propaganda war has seen three campaigns, each based on the resurfacing of a different secret history.

Communists as Mass Murderers in 1945

In socialist Yugoslavia, one of the founding myths of the state was the moral superiority of the communists and their Partisan army to the Croa-tian fascists, or Ustaša and the Serbian royalists, or Četniks17 during World War Two. The Ustaša particularly were reviled because of their genocide against Jews, Serbs and Gypsies, and were seen as having been worse even than the Nazis in their cruelty.18 While the communists admitted to having fought a tough, vicious war, and to having executed many traitors and war criminals, they did not admit to having themselves committed massacres.

This element of the Partisan myth held up within Yugoslavia, at least publicly, until 1989–90. However, there had always been stories within Yugoslavia of Partisan massacres of Ustašas and Četniks at the end of the war. These stories were in fact published in Yugoslav émigré circles after the war, but such publications could not be brought into Yugoslavia or openly mentioned, much less discussed, within the country. Further, the émigré sources were themselves suspect, due to their fanatical hatred of communist Yugoslavia. However, the various stories received substantia-tion from a more reputable source when Milovan Djilas published his war memoirs in English in 1977 (M. Djilas 1980), even though at that time the book could not be published, discussed or even mentioned in Yugoslavia. Djilas, who was in a position to know,19 said that many Ustaša, Četniks,

16 One of the disputed points in current Yugoslav history, both Serbian and Croatian, is whether there was a deliberate suppression of knowledge of many of the Ustaša’s crimes, in the name of promoting the communist goal of “brotherhood and unity.” Serbs assert a cover-up, Croats deny it.

17 “Četniks” were the Serbian royalist forces during the civil war of 1941–45, and vehe-ment opponents of the Ustaša regime.

18 A concise discussion of the Ustaša, their ideology and their genocidal practices can be found in A. Djilas (1991: 103–128).

19 Milovan Djilas was one of the leaders of the Yugoslav Communist Party during the war, and a major general in the Partisan army. At the end of the war, he was one of the four leaders (including Tito) who ran the country. In 1954, he shocked his comrades and the world by renouncing communism, and began a career as a dissident that had him in and out of prison for years. A prolific writer of political essays, fiction, a biography of the

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and other opponents of the communists surrendered to the British in Austria in 1945. After they were repatriated by the British to Yugoslavia, all were killed. Djilas left no doubt of the scope of the massacres: “Accord-ing to what I heard in passing from a few officials involved in that set-tling of scores, the number [of dead] exceeds twenty thousand – though it certainly must be under thirty thousand . . . A year or two later, there was grumbling in the Slovenian Central Committee that they had trouble with the peasants from those areas, because underground rivers were casting up bodies. They also said that piles of corpses were heaving up as they rotted in shallow mass graves, so that the very earth seemed to breath” (M. Djilas 1980: 447). These descriptions, of underground rivers and heav-ing piles of corpses, seem almost the stuff of epic poetry, and would cer-tainly seem to indicate that there were indeed witnesses to the atrocities who could not speak openly.

Djilas’ depiction of partisan guilt went largely unnoticed (it was, after all, only one brief passage at the end of a book of 450 pages) until the story was repeated, this time with extensive reports from witnesses and the few survivors, in Nikolai Tolstoy’s The Minister and the Massacres (1986). That book, primarily an extended accusation against Sir Harold Macmillan for having made the decision to repatriate the Yugoslavs involved, carried extraordinary details of the massacres (Tolstoy 1986: 130–207). Tolstoy published accounts by survivors of the massacres. In some cases, the sur-vivors had been pushed into the caves after having been shot but not seriously wounded. Some of these accounts had been published in émi-gré journals and newspapers, but had not received the wide international publicity and credibility that Tolstoy’s book afforded. While in 1986 a public discussion of the matter was still not possible within Yugoslavia, the book received extensive coverage in Europe, and its contents became widely known in Yugoslavia.

In 1990, however, what was widely known but officially unacknowl-edged within Yugoslavia became central to a new image of Yugoslav communism and of the Ustaša. The transformation of the communist mas-sacres from secret history to public knowledge was dependent on political changes within Yugoslavia. First, in January 1990 Tito’s communist party, the League of Communists of Yugoslavia, self-destructed in bickering

Montenegrin poet-prince Njegoš and several volumes of his own biography, he could not be published in his own country until 1989. Since Djilas himself is Montenegrin and hence a Serb, his confirmation of massacres of the Ustaša could not be written off as Croatian nationalist propaganda.

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between the Leagues of Communists of Serbia, Croatia and Slovenia at the party’s last (and aptly named, “extraordinary”) congress – national-ism was replacing class struggle within each of these parties (see Rusinow 1991: 5–6). By that stage, Slovenia was already undergoing a transforma-tion away from the one-party state, with the formation of new political parties and demands for free elections. These demands were met: elec-tions were held in Slovenia in April 1990 and in Croatia in May–June 1990. In both cases, nationalist non-communists won the elections,20 although in both cases, the former communist parties, now renamed as the “Party of Democratic Change” (Croatia) and the “Party of Democratic Renewal” (Slovenia) were the largest opposition parties in terms of votes obtained. Perhaps in part to discredit these large opposition parties and in part to inflame nationalist passions within their republics, both the Croatian and the Slovenian governments undertook to publicize the massacres com-mitted by the communists in 1945. Their efforts included widely publi-cized church ceremonies and excavations of ossuaries in caverns (see, e.g., Danas, 17 July 1990 [cover story]), and the publication of commemorative volumes on the newly discovered massacre sites (e.g., Žanko and Šolić 1990).21 The disruptive potential of the material was recognized in a politi-cal cartoon in the Zagreb newsweekly Danas (17 July 1990: 2), showing two figures huddling in a cavern full of bones, with one saying “Do you really think that this is an inspirational place for discussions on constitutional changes?”

From the published accounts of the massacres, it is clear that knowl-edge of them was widespread but repressed as long as the communists remained in power. Indeed, one of the commemorative volumes had a section entitled “the eruption of suppressed memories” (Žanko and Šolić 1990: 24–32). These accounts also show that knowledge of the massacres was kept alive by transmittal of the stories from the actual eyewitnesses to their children. However, it is likely that the public acknowledgement of the massacres would not have come had the communists remained in power. In Croatia and Slovenia in 1990, the republican leagues of commu-nists had already seen a transition in leadership from the partisans, who had held power for forty years, to men born in the 1940s. These younger

20 With the reservations mentioned in note 3.21  Danas was in 1990 the most important news weekly in Croatia, with a format similar

to that of Time in the United States. The volume by Žanko and Šolić was published by the publishing house of the largest daily newspaper in Croatia, Vjesnik, and was sold in that paper’s kiosks throughout Yugoslavia.

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men, though not themselves guilty of participating in the massacres, could not admit that they had occurred. This reticence was regretted after the fact, in a statement by the League of Communists of Croatia – Party of Democratic Change, a week after the widespread publicity of the mas-sacres began, when it issued an “appeal for reconciliation” of all parties in Croatia: “We are aware of the fact that our call for investigations of the entire truth, for forgiveness and civil reconciliation should have come earlier, but we believe that even now it is not too late. Our call would have had greater moral legitimacy if the Party had issued it while it was in power. That doesn’t reduce the sincerity of our intentions today” (Žanko and Šolić 1990: 94–95).

However, in the distinctive circumstances of Croatia, the call for “civil reconciliation” could not be uncomplicated. The key here is the qualifi-cation: civil, as opposed to national. The difference is between a recon-ciliation of citizens or political parties, on the one hand, and nations, the Croats and the Serbs of Croatia on the other. It is at this point that the second front of historical revisions in Croatia becomes relevant.

Diminishing the Genocidal Practices of the Croatian State, 1941–45

The fascist NDH had both a policy and a well developed practice of geno-cide against Serbs, Jews and Gypsies, complete with concentration camps and village massacres. Official Yugoslav historians after the war declared that over 700,000 Serbs had been killed by the Ustaša. However, beginning in the 1960s, the extent of the slaughter of Serbs by the wartime Croatian state was contested by some unorthodox, nationalist Croatian historians, who were condemned for nationalism and whose works were suppressed (see Tudjman 1990). Indeed, the actual number of victims of the Ustaša may have been inflated (see discussion in A. Djilas 1991: 125–127). Even so, the view that the NDH practiced genocide had not received serious public challenge within Yugoslavia until 1990.22

The numbers of Serbian dead and their importance as indicators of a distinctly Croatian genocide, however, have now become matters of

22 On the other hand, many such challenges were made outside of Yugoslavia among Croatian émigré groups. Unfortunately, the role of these external groups in keeping alive, outside of Yugoslavia, memories that were suppressed and denied within the country can-not be explored here, but the phenomenon of “long-distance nationalism” (Anderson 1992) is important.

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great controversy in Yugoslavia. The central figure in the argument was Dr. Franjo Tudjman, one of Tito’s Partisans during the war, later one of Tito’s generals in the Yugoslav Peoples Army, turned historian, Croatian nationalist, dissident and political prisoner in the 1970s, politician in 1990, and elected President of Croatia in the first free elections after the war, in May–June 1990. Just before the elections, Tudjman published a book (1990) that attempted in two ways to diminish the genocidal acts of the NDH. First, Tudjman argued that the number of Serbs murdered had not, in fact, been so great as indicated by official statistics (Tudjman 1990: 79–101).23 Thus, empirically, the alleged genocide of the NDH was said to be overstated. However, Tudjman also argued against the absolute criminality of genocide itself, by equating it with the massacres and other crimes with which history is rife. In his words,

throughout history there have always been attempts at a “final solution” for foreign and undesirable racial-ethnic or religious groups through expulsion, extermination, and conversion to the “true religion”. . . . It is a vain task to attempt to ascertain the rise of all or some forms of genocidal activity in only some historical period. Since time immemorial, they [genocidal practices] have always existed in one or another form, with similar consequences in regard to their own place and time, regardless of their differences in propor-tion or origin. . . . Reasoning that would assign genocidal inclinations, rea-soning or goals to only some nations or racial-ethnic communities, to only some cultural-civilizational spheres and social-revolutionary movements, or to only some individual religions and ideologies is completely mistaken and beyond any thought of historical reality (Tudjman 1990: 166).

By this reasoning, the NDH was simply another of history’s brutal actors, and there was nothing particularly noteworthy, or blameworthy, about the Croatian genocide of 1941–45.

The issue crystallized around the numbers of dead in the concentra-tion camp of Jasenovac, which in orthodox post-war historiography was accepted as the Serbian Golgotha, where hundreds of thousands of Serbs were murdered. In the new Croatian historiography, however, the actual number of Serbs killed in Jasenovac was only in the tens of thousands, and the Ustaša also killed all those who opposed their regime, including Croats (see Boban 1990). By this reading, the alleged genocide of Serbs by the NDH was a gross exaggeration on the part of communists and Serbian historians, who sought to discredit the anti-communist NDH.

23 Tudjman makes similar claims in regard to the number of Jews killed in the Holocaust, saying that the total numbers of victims were exaggerated (Tudjman 1990: 147–158).

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The implications of the new Croatian position were presented suc-cinctly by a professor of history at Zagreb University:

There is a tendency in the works of [Serbian historians] to cite the Ustaša policy as uniquely genocidal, with Serbs as the sole victims. The issue is far more extensive and complicated. Genocidal policy was represented not only by the Ustašas, and the Serbs were not the only victims. On the territory of wartime Yugoslavia, genocide was the policy of other military-political forces, too, notably the occupationists and the Serbian Chetniks. Hence, other South Slavic peoples (Croats, Muslims and others), were also victims of genocide. . . .

The Serb – or any other – people, alone, was not the sole victim of Ustaša policy. Croats who offered widespread resistance to the Ustaša regime were victims too. Any assessment of the Ustaša regime and its policies is incom-plete without and account of the circumstances in Yugoslavia and interna-tionally that allowed them and their policies to get and exercise power. In other words, Ustašism, with all its characteristics and consequences, was not genetically Croat, but was the product of specific historical circumstances (Boban 1990: 588–589).

But this position is at least as tendentious, and open to challenge on fac-tual grounds, as orthodox postwar historiography (see Hayden 1992). In regards to numbers, it is indeed likely that the figures for Serbian dead in Jasenovac itself have been inflated or exaggerated. However, arguments like Tudjman’s do not take into account the massacres of Serbs that took place outside of the concentration camps, in Ustaša raids on Serbian vil-lages; and most Serbian victims probably died in those raids (A. Djilas 1991: 121–124; 125–126). Moreover, for Serbs, Jasenovac has become a metonym for the entire Ustaša campaign to eliminate the Serbs from Cro-atia. Arguments that attempt to minimize the number of victims at Jase-novac and to deny the ultimate evilness of the Ustaša campaign against Serbs ignore this metonymy, and are thus both offensive and ominous to Serbs, especially those living in Croatia.

The symbolic importance to Serbs of the NDH genocide was expressed by Dr. Jovan Rašković following the armed clash between Croatian police and Serbs in the village of Borovo Selo in May 1991 that was at that time the worst case of Serb-Croat conflict since the 1940s. Rašković, a relatively moderate leader of Croatia’s Serbs in a political milieu in which there are no true moderates, analyzed the politics of Dr. Tudjman’s government in the following terms:

[The Croatian leadership] underestimated the importance of the genocide of the Croatian Ustaša in Serb-Croat relations. Thinking that would attempt to minimize and hide genocide, and thereby to establish an image that

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genocide is unimportant and pass over it, is immoral. That type of politics, which both scientists and the leadership have carried out for purely politi-cal reasons, has shown itself to be completely counterproductive, because the Serbian nation in Croatia has understood it as a call for recidivism. . . . Instead of explicitly and wisely establishing its view of genocide and doing what had to be done at the moment of assuming power, recognizing certain collective national rights for the Serbs precisely because of the genocide, the new government went exactly the other way and established an atmosphere in which it was alleged that Croats had been victimized by Serbs. As if Serbs had constructed Jasenovac and as if there should now be established some balance for this imaginary imbalance! (Vreme, May 6, 1991: 5).

The new Croatian history, then, was aimed at replacing the established orthodoxy of Croatian genocide against Serbs. However, by denying the quality of the evil, and minimizing the numbers of killed, the new Croa-tian history seems designed to suppress the experience of Croatia’s Serbs, who remember very well the massacres of their people in 1941–45. Thus, the new Croatian history may force those experiences into hiding, trans-forming them into secret histories.

Restating Croatian Genocide: Uncovering More Ustaša Massacres

In reaction to the rapid development of the new Croatian history, Milošević’s regime in Serbia began its own propaganda effort to ensure that the crimes of the NDH against Serbs would not be forgotten. Through-out the summer of 1990, as Croatian and Slovenian newspapers carried stories about the communist massacres at the end of the war, the major Serbian paper, Belgrade’s Politika, ran a long series of stories on atroci-ties committed by the Ustaša and the NDH, largely sticking with materi-als from official sources and orthodox post-war historiography. By 1991, however, the Serbian counter to the new Croatia history took the form of uncovering secret histories of Ustaša massacres which had not entered into official histories. In April 1991, Belgrade television ran a documentary film recording the 1991 entry of investigators into a cave in Bosnia and Herzegovina where scores of Serbs, including many children, had been massacred by the Ustaša.24 The existence of this cave and its ossuary, like that of those in Slovenia and Croatia, had been known to local people but never acknowledged formally by the government. The film showed

24 I watched this documentary when it was first broadcast, but do not have details of the broadcast or of the documentary.

recounting the dead 41

exhumations, long lines of coffins, and mourners finally able to bury their dead. The political effect of the film was twofold. First, it continued the discrediting of the old (pre-Milošević) communist regime, which had kept knowledge of the massacre hidden, and was therefore “anti-Serb.” Of course, the more important effect of the film was to reinforce orthodox history of the brutality of the Ustaša and the reality of their genocidal campaign.

The discovery of Ustaša victims in Bosnia and Herzegovina continued in the summer of 1991. In August, a huge public funeral was held for what was described by Radio Belgrade as “three thousand victims of the Ustaša genocide, whose bones were recently removed from ten caves in Herze-govina” (BECT 80 [31 July 1991]).25 Radio Belgrade’s report of the funeral itself indicated a massive political event, the result of great effort: after “nine months of recovering bones from Herzegovinian caves,” the “victims of the Ustaša” were buried in a mass grave. The line of coffins stretched for one and a half kilometers; the liturgy was sung by the Patriarch of the Serbian Orthodox Church, and speakers included Serbian politicians from Bosnia and Herzegovina, politicians from Serbia, and leading Ser-bian nationalist intellectuals (BECT 85 [5 August 1991]).

The Serbian campaign to rediscover and reinforce memory of the Ustaša massacres of Serbs was continued in August 1991 with the open-ing of an exhibition of films about that campaign of genocide (Vreme, 19 August 1991: 18). Material accompanying the film explained that the “Ustaša crimes do not fade with time,” and that “no people, except Serbs, has experienced such a Golgotha.” At a moment in which Serbs in Croatia were pressing an armed uprising against the secessionist government of Croatia, it seems clear that the film exhibit was designed both to demon-ize Croats as a “genocidal people” and to stir the passions of Serbs as hav-ing been among the great victims of the Twentieth Century.

“Verbal Civil War” and the New Official Histories

As the Yugoslav federation collapsed into civil war in Croatia between Serbs and Croats in the summer of 1991, the propaganda warfare of the

25 BECT is an “electronic magazine” produced by the Electrotechnical Faculty of Bel-grade University and distributed by e-mail throughout the world. As an electronic medium, it is more than ephemeral for scholarly purposes. “Hard copy” of BECT materials cited in this paper are in the author’s files.

42 chapter two

two regimes intensified. Belgrade’s leading papers, Politika and the others of its publishing house, which had been taken over by Milošević in 1987 (see Hayden 1991), ran jingoistic accounts in which Croatian forces were “Ustaša” and the Croatian government “Ustaša” or “Fascist.” The major Croatian paper, Vjesnik, referred to Serbian fighters as “Četniks” or “ter-rorists” and to the Serbian government as “Bolshevik” or “communist.” In both republics, the major television and radio networks had already been brought under strict government control and served only as propaganda organs for nationalistic jingoism. In Croatia, the republican government banned the central government’s YUTEL network, which had been the only reliable source of television news in all of Yugoslavia, as being “anti-Croat,” and drove the leading quasi-independent news weekly, Danas, into a forced (and fraudulent) bankruptcy proceeding (Vreme, 19 August 1991: 16–17). In Serbia, the remaining independent news sources (Student Radio B-92 FM, Independent Television “Studio B”, the daily Borba and the weekly magazine Vreme, all located in Belgrade) also came under strong government pressure, while YUTEL was restricted to broadcasting only very late at night.

In these circumstances of “verbal civil war,” the newly minted nation-alist official histories are likely to remain in place and unchallengeable within each of the two republics, Serbia and Croatia. Their mutual incon-sistency, far from providing opportunity for questioning the new history in either republic, is instead much more likely to provide justifications for suppressing dissenting views, since anyone who might challenge the official view will be seen as ipso facto supporting the other perspective, and thus be a traitor.

The Moral Authority of Murderous Regimes

These competing new histories may reveal some truths about the regimes that propound them, as well as about the phenomenon of secret histo-ries. The Croatian discovery of massacres by communists and the Serbian concentration on the crimes of the Ustaša in the last “Independent State of Croatia” are meant to discredit the moral authority of the communists in the first case and Croatian nationalists in the second, and to disqualify them from politics. The Croatian minimizing of the genocidal actions of the NDH is simply the reverse of this message, an attempt to fend off the implications of communist post-war historiography, while the Serbian rediscovery of Ustaša victims is an effort to restate, and thus reproduce, the image of Croatian political immorality.

recounting the dead 43

These histories are categorical and totalizing. If one accepts them, then the stigmatized groups are indeed disqualified from politics. However, this totalizing effect makes the promoters of the new histories vulnerable as well. If the claim to political legitimacy is based on the immorality of the opposition, then any revelation of immorality by the side promulgat-ing the histories may inflict serious political damage on those accusers. In the Yugoslav case, this vulnerability of the promulgators of a totalizing history can be seen in the failure of the League of Communists of Croatia to deal with the communist massacres of repatriated prisoners until they were forced to do so when the massacres were revealed, celebrated and transformed into mass martyrdoms by the new non-communist govern-ments of Slovenia and Croatia. Despite their own personal lack of guilt and their genuine desire for reform, the new generation of communists could not themselves uncover the crimes committed by their predeces-sors, since those crimes destroyed the moral superiority of the commu-nists over their nationalist opponents.

This vulnerability of the promulgators of totalizing history, in turn, may account for their efforts to totally suppress previous historical accounts and other sources of data. The means for such suppression may be found in changing rituals of commemoration. Thus, the new Croatian govern-ment changed the date of the anniversary of the first uprising in Croatia against the fascist occupation forces in 1941 from that of an attack by com-munists to one of an attack by non-communist resistance. Other changes in commemoration can be seen in the actions of Tudjman’s government in changing the names of streets in Zagreb, removing names that commemo-rated communists, communist Yugoslavia, and even the internationalism of non-alignment.26 Perhaps most revealing in this regard, the govern-ment changed the name of the “Square of the Martyrs of Fascism” to the “Square of the Croatian Leaders.” The “Martyrs of Fascism” name could be too closely tied to the Ustaša genocide, which the new historiography was aimed at minimizing. Similarly, the new government has largely ignored the concentration camp at Jasenovac. Where the communists had built a massive monument and a museum there, and bussed school children to the site, the new government’s view of Jasenovac has been to ignore its existence. Again, this action of the government in ceasing old forms of commemoration fits with the new historiography, which views the evils of Jasenovac as having been overstated.

26 Similar street name changes were also made in other Yugoslav cities, including Belgrade.

44 chapter two

Of course, new books of the revised history have been written, and more will come. These books have and will further ignore or reject the previously established history, removing it from intellectual and popular political discourse, at least for a while. However, this process of revision must in turn create new secret histories, based either on first-hand knowl-edge of events now to be unacknowledged, or on knowledge of the super-seded books. And in this context, the excesses of the government may come back to haunt it. Thus a non-party movement has been underway in Zagreb to restore the name of the “Square of the Martyrs of Fascism,” even as the civil war with Serbs has intensified.

But the tragedy of the new histories in Yugoslavia is not just an intel-lectual one, and its victims are not only those whose knowledge must remain unacknowledged and repressed. In Yugoslavia in 1991, the new totalizing histories have been used to justify civil war. In this atmosphere of increasing polarization, the cost of suppressing alternative histories has been measured in blood.

August and December, 1991

Postscript, September 1992: With the spread of the civil war into Bosnia and Hercegovina since March–April 1992 (see Bogosavljević et al. 1992), the impact of earlier hid-den histories has been reduced, while comparisons of current atrocities with the official histories of World War Two have increased. The most important elements of this latter process have been the comparisons of “ethnic cleansing” and “Serbian-run death camps in Bosnia-Hercegovina” with the Nazi practices of genocide.27 In fact, the more apt comparison would be with the genocidal campaigns of the Ustaša during World War Two; and while the Serb atrocities may have been most widespread, Croat and Muslim forces have also engaged in “ethnic cleansing” through terror and the creation of camps for civilians. By comparing the latest atrocities

27 These comparisons were made by many newspapers and magazines in August and September 1992. A particularly tendentious form of reporting on these developments can be found in a Staff Report to the Committee on Foreign Relations of the United States Senate, written in August 1992 (Galbraith and Maynard 1992). The so-called death camps might better be compared with the American civil war camps such as Andersonville than with Auschwitz. In this regard, it is worth noting that the commandant of Andersonville was the only person executed for war crimes after the Civil War – and that in 1909, the Daughters of the Confederacy erected a monument to the memory of this “hero-martyr” (McPherson 1988: 802).

recounting the dead 45

only with those of the Germans in the 1940s and by focusing only on the Serbs, the international media and political leaders have created an easy new history that will absolve them of their own responsibilities in helping to provoke the Yugoslav disaster through their premature recognition of Croatia and of Bosnia (see Hayden 1992a): everything can be blamed on the Serbs. Yet this easy new history has consequences that must cause intellectual unease:

1.  If similar ideologies and processes of ethnic cleansing were espoused and practiced by Germans and Croats in the 1940s and Serbs in the 1990s, there may be main strains of central European political and social thought that induce such activities. However, looking at each set of practices in isolation obscures this possible generality of the pro-cesses in question.

2.  The equation of Serbian atrocities in 1992 with German genocide in the 1940s facilitates forgetting the Serbian victims of the Croatian geno-cide of 1941–45. In this sense, the new history obscures what had been the official and accepted memories of World War Two, thus making the dead of that time, both those who had been memorialized after the war and those just “discovered” in 1991, victims once again: their deaths were now, indeed, in vain.

This second consequence must be bitter for Serbs, who will some day be forced to confront a painful truth: the hidden histories that the Serbian government revealed and propagated in 1991–92 were used to incite Serbs into committing atrocities rivaling those of their earlier German, Croatian and Muslim tormentors. In so doing, the legitimacy of the Serbian cause has been lost; and the Serb victims of the 1940s, once honored dead, will be forgotten.28

28 Compare the statement delivered by the Acting Secretary of State of the United States at the London Conference on Yugoslavia, 26 August 1992: “[i]t is Serbs, alas, who are most guilty today of crimes which mimic those of their former tormentors, and which violate the sacred memory of ancestors who suffered at their hands.” It is interesting that Secretary Eagleburger, himself a former U.S. Ambassador to Yugoslavia, fluent in Serbo-Croatian and well aware of the events of 1941–45, does not name the Serbs’ “tormentors” of that period. This act of forgetting presumably was caused by current politics: Croats and Muslims are now victims of the Serbs, and the Germans are now allies.

46 chapter two

References

Ash, Timothy (1990). “The Year of Truth.” in T. Ash, The Magic Lantern. New York: Random House.

Bakić-Hayden, Milica and Robert Hayden (1992). “Orientalist Variations on the Theme ‘Balkans: ’ Symbolic Geography in Yugoslav Politics, 1987–90.” Slavic Review (forthcoming).

Banac, Ivo (1984). The National Question in Yugoslavia: Origins, History, Politics. Ithaca: Cornell University Press.

Boban, Ljubo (1990). “Jasenovac and the Manipulation of History.” East European Politics and Societies 4: 580–592.

Christensen, Julie (1991). “Tengiz Abuladze’s Repentance and the Georgian Nationalist Cause.” Slavic Review 50: 163–175.

Connerton, Paul (1989). How Societies Remember. Cambridge: Cambridge University Press.

Denich, Bette (1991). “Unbury the Victims: Rival Exhumations and Nationalist Revivals in Yugoslavia.” Paper presented at the annual meeting of the American Anthropological Association, Chicago, IL, November 1991.

Djilas, Alexis (1991). The Contested Country. Cambridge: Harvard University Press.Djilas, Milovan (1980). Wartime. New York: Harcourt, Brace, Jovanovich.Drašković, Vuk (1981). Sudija. Belgrade: Zapis.Dumont, Louis (1986). “The Totalitarian Disease,” in L. Dumont, Essays on Individualism.

Chicago: University of Chicago Press.Esherick, Joseph and Paul Washerstrom (1990). “Acting Out Democracy: Political Theater

in Modern China.” Journal of Asian Studies 49: 835–865.Hayden, Robert (1990). Social Courts in Theory and Practice: Yugoslav Workers’ Courts in

Comparative Perspective. Philadelphia: University of Pennsylvania Press.—— (1990a). “A Confederal Model for Yugoslavia?” Paper presented at the annual meeting

of the American Association for the Advancement of Slavic Studies, Washington, DC, October 22, 1990.

—— (1991). “Yugoslavia: Politics and the Media.” Report on Eastern Europe, December 6, 1991: 17–26. Munich: RFE/RL Research Institute.

—— (1991a) “Yugoslavia: From Civil Society to Civil War.” Paper presented at the annual meeting of the American Anthropological Association, Chicago, IL, November 21, 1991.

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1914. Columbus: Ohio State University Press.Kligman, Gail (1990). “Reclaiming the Public: A Reflection on Recreating Civil Society in

Romania.” East European Politics and Societies 4: 393–438.Mirić, Jovan (1984). Sistem i kriza. Zagreb: Cekade.Ramet, Sabrina (1991). “Serbia’s Slobodan Milošević: A Profile.” Orbis, Winter 1991: 93–105.Roeder, Philip (1991). “Soviet Federalism and Ethnic Mobilization.” World Politics 43: 196–232.Rupel, Dimitrij (1990). Od vojnog do civilnog društva. Zagreb: Globus.Rusinow, Dennison (1978). The Yugoslav Experiment, 1948–1974. Berkeley: University of

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1(10–11): 17 (3 August 1990).Szporluk, Roman (1988). Communism and Nationalism: Karl Marx versus Friedrich List.

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Tadić, Ljubomir (1988). “Kominterna i nacionalno pitanje Jugoslavije.” Književne Novine 760 (15 September 1988): 1,5.

Tolstoy, Nikolai (1986). The Minister and the Massacres. London: Century Hutchinson.Tudjman, Franjo (1990). Bespuća povijesne zbiljnosti. Zagreb: Nakladni zavod Matice

hrvatske.Verdery, Katherine (1991). National Ideology Under Socialism. Berkeley: University of

California Press.Woodward, Susan (1989). “Reforming a Socialist State: Ideology and Public Finance in

Yugoslavia.” World Politics 41: 267–305.Žanko, Želimir and Nikola Šolić (1990). Jazovka. Zagreb: Vjesnik.

CHAPTER THREE

THE PARTITION OF BOSNIA AND HERZEGOVINA, 1990–93*

The war in Bosnia & Herzegovina (hereafter, B&H) can be classified in several ways. It is a civil war, in that the citizens of one country are fight-ing each other. It is a war of secession, in that the leaders of the Serbs and Croats of B&H have made it clear that they will tolerate no author-ity whatever from any central government, and that the “autonomy” they seek would amount to secession de facto if not de jure.1 And it is a war of irredentism in that many Serbs and Croats wish to annex parts of B&H to Serbia and Croatia, respectively. It is not primarily a war of international aggression, in that it does not involve the forces of one state attacking the forces of another, although both the Serbian and Croatian forces in B&H derive much support from their “mother republics.”

All of these definitions hinge on the legal fact that B&H has been inter-nationally recognized as an independent state. The civil war is thus inter-nal to this state, while secession must take place from it. Yet this legal fact is actually a social fiction. B&H is not a functioning state, and its recognized government has authority over very little of its territory. By itself this political and military fact is not significant, since in any civil war the authority of the government is challenged and it may lose con-trol over part of its territory, at least temporarily.2 However, in B&H the

* Author’s Note, 2012: This article was written during the first year of the war, and refers to the conflict in the present tense. This usage is retained to reinforce the time frame in which the work was done. Copyright restrictions prevent reproducing the maps referred to in this article. The most comparable selection of maps readily available are in Chapter 3 of S. Burg and P. Shoup, The War in Bosnia – Herzegovina (London: M. E. Sharpe, 1999).

1  Since both the Serbs and the Croats of B&H have agreed to constitutional principles that are premised on the territorial integrity of B&H and that would make secession very difficult, it might seem that neither secession nor irredentism are involved. However, as will be explained below, the “republican government” outlined in these principles would have literally no authority for internal affairs, thus granting autonomy amounting to de facto independence; and neither the Serbs nor the Croats have hidden their desire to annex their parts of B&H, despite the continued existence of B&H as a legal entity – or legal fiction.

2 Such a loss of control need not be fatal to state continuity. However, the Arbitration Committee of the EC’s Conference on Yugoslavia (the “Badinter Committee”) delivered an opinion in late 1991 on the continued existence of Yugoslavia that cast doubt on the legal viability of federal states. Noting that the withdrawal of representatives from several

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government that attained international recognition did not at that time have actual control over much of the territory of the new state, and since the beginning the aim of the war from the perspective of the Croats and Serbs has been to ensure that no such authority is established. Thus where in most wars over attempted secession the recognized government may be seen as trying to regain its authority, B&H is a situation in which the recognized government is attempting to attain the normal attributes of a functioning state, against the wishes of large numbers of its own putative citizens who have rejected its authority from the start.

From this perspective, the war in B&H is indeed an example of politics by other means. Understanding the Bosnian war may thus be best accom-plished by looking at it from the perspective of the political and social processes at work in B&H before recognition and considering how these processes are related to the course of the armed conflict that broke out at that time. By so doing, it can be seen that the war in B&H in 1992–93 is the continuation of a process of partition of that republic that began in 1990, and the roots of which go back much further.

Political Partition: The Elections of 1990

While the sources of the conflicts since 1991 in what was Yugoslavia are often viewed as having grown over “centuries of hatred,” the proximate cause of the partition of B&H was the political division manifested in the elections held there in 1990. Until those elections, it was possible to see B&H as one polity composed of several ethnonational groups. After the 1990 elections, however, it was clear that the citizens of the Socialist Republic of Bosnia and Herzegovina had divided themselves, overwhelm-ingly, on ethnonational grounds. The percentage of the vote received by a Muslim nationalist party, a Serbian nationalist party, and a Croatian

republics meant that “the composition and workings of the essential organs of the Federa-tion . . . no longer meet the criteria of participation and representativeness inherent in a federal state;” and that “recourse to force has led to armed conflict between different ele-ments of the Federation” which the authorities of the federation and of the republics had shown themselves to be powerless to stop, the Committee concluded that “The Socialist Federal Republic of Yugoslavia is in the process of dissolution.” (Opinion published in Yugoslav Survey, 1991 no. 4, pp. 19–20). This opinion would seem to render any federal state liable to the charge of “dissolution” whenever a major part or several parts of it withdrew from participation from central organs of government and began armed insurrection, thus making federal structures inherently fragile. The implications of this opinion are particu-larly ominous for the continuity of B&H, since that “state” never solidified.

the partition of bosnia and herzegovina 51

nationalist party was in each case slightly under that nation’s percent-age of the total population, and these three parties took 79% of the vote between them. The percentage of each group, its major nationalist party and that party’s percentage of the vote were as follows:

Ethnopolitical Division of Bosnia & Herzegovina, 1990

Percent of Population

Party Percent of Vote, 1990

Muslims 43.7 Party of Democratic Action (SDA) 37.8Serbs 31.3 Serbian Democratic Party (SDS) 26.5Croats 17.5 Croatian Democratic Union (HDZ) 14.7Non-national

Parties League of Communists – Party for Social Change

 6.0

Alliance of Reform Forces of Yugoslavia

 5.6

Source: Vladimir Goati, “Political Life in Bosnia-Herzegovina, 1989–1992,” and Srdjan Bogosavljevic, “Bosnia and Herzegovina as Reflected in Statistics,” both in Srdjan Bogo-savljevic et al., Bosna i Hercegovina izmedju rata i mira (Beograd and Sarajevo, Forum za Etnicke Odnose, 1992), pp. 27 & 47.

It was also clear that the leaders of the Serbian and Croatian parties (SDS and HDZ, respectively) were not in favor of the creation of a unitary state of B&H, but rather would demand autonomy to the point of confedera-tion. Many of these leaders did not hide their views that large parts of B&H should belong to Serbia or Croatia.3 For them, any “state” of B&H would be temporary, a step towards secession followed by unification with the mother state of the ethnonation.

3 See Dušan Janjić, “Gradjanski rat u Bosni i Hercegovini: Opšte karakteristike i uzroci sukoba i rata,” in Srdjan Bogosavljević et al., Bosna i Hercegovina izmedju rata i mira (Beograd and Sarajevo: Forum za etničke odnose, 1992), pp. 76–85. To be sure, the leader of the HDZ in Bosnia and Herzegovina, Stjepan Kljujić, was in favor of maintaining B&H as a unitary state, but this stance cost him his leadership position in the HDZ (see Paul Shoup, “Uloga domaćih i medjunarodnih aktera bosanskohercegovačke drame,” in Bosna i Hercegovina izmedju rata i mira, p. 102). He was dismissed by Mate Boban, who said that Kljujić was “too much Bosnian, too little Croat,” with the consent of Zagreb (see Balkan War Report, Feb./Mar. 1993, p. 14). Boban proclaimed a state of Herceg-Bosna within B&H, much like the so-called Serbian Republic, on 3 July 1992 (Janjić, op. cit., p. 85). While many members of the HDZ in B&H, particularly the urban Croats, wanted to preserve B&H as a real state, the “Herzegovinian faction” headed by Boban defeated the urban faction headed by Kljujić. Thus the leaders of the HDZ in B&H, like those in the HDZ in power in Croatia, sought the division of B&H under the fig-leaf of “cantonization.”

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There is some evidence that much of the population of B&H did not share the sentiments of the leaders of the nationalist parties, and viewed the formation of such parties as dangerous, as late as May 1990.4 With the collapse of Yugoslavia, however, the population divided largely along eth-nic lines over the future course, with Croats opting for either an indepen-dent B&H or one that was “sovereign” in a confederation with Yugoslavia, Serbs calling for the maintenance of B&H in a Yugoslav federation, and Muslims wanting a “sovereign republic in a weak federation.”5

Since no party had a majority, leaders of the three largest parties agreed to form a coalition government in which the President of a seven-member Presidency was to be a Muslim, the President of the Assembly a Serb and

4 Janjić, “Gradjanski rat,” p. 80.5 Ibid., p. 81. In Yugoslav political discourse from 1989 through 1991, the difference

between a federation and a confederation was seen as lying in the presence (federation) or total absence (confederation) of a central government. Thus a “confederation” would actually mean complete independence, supposedly within some kind of political shell, but with no legal authority of any kind whatever lying with any central government. Thus a confederation would look like a state but would not in fact be one, since it would have no authority. The popularity of this solution with politicians was that the term “confederacy” could be used to convince voters that a joint state would continue when it fact it would be destroyed. Voters’ willingness to be fooled on this point may have reflected wishful thinking and the dream for a solution in which republics could indeed be both completely independent of one another and yet still somehow bound together (see Robert M. Hayden, “The Beginning of the End of Federal Yugoslavia: The Slovenian Amendment Crisis of 1989.” [Pittsburgh: University of Pittsburgh, Carl Beck Papers in Russian and East European Studies no. 1001, 1992], and ibid., “A Confederal Model for Yugoslavia?”, paper delivered at the annual meeting of the American Association for the Advancement of Slavic Studies, Washington, D.C., Oct 22, 1990). The uncritical acceptance of the concept of “confedera-tion” by western analysts (see, e.g. Mark Thompson, A Paper House [New York: Pantheon, 1992], pp. 188–189) may have also represented either wishful thinking or the failure to com-prehend the real meaning of the “confederal” position. In fact, the doctrine of republican supremacy first enunciated by Slovenia and later adopted by Croatia and Serbia turned the Yugoslav “federation” into a de facto confederation, by depriving the federal government of any binding authority (see Slobodan Samardžić, “Dilemma of Federalism in Yugosla-via – Problem of Sovereignty in a Multinational Federation,” Praxis International 11(3), pp. 377–386. The resulting collapse of this confederal “federation” proved the points made by Madison, Hamilton and Jay in 1787 in Federalist Paper no. 5: “They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be prey to discord, jealousy and mutual injuries; in short, that they would place us exactly in the situation in which some nations doubtless wish to see us, viz., formidable only to each other (emphasis in original). The sources of conflict enumerated in Federalist Paper no. 7 also held true in Yugoslavia in 1991: border and other territorial disputes, problems of commerce, attempts at economic domination by one state over another, division of the common debt, and the probability of different states forming alliances with mutually hostile powers.

the partition of bosnia and herzegovina 53

the head of the republican government a Croat. Muslims headed ten min-istries, Serbs seven, Croats five. But beneath this facade of cooperation, the parties in power in each governmental institution engaged in purges of those not of the correct ethnicity. Further, at the municipal (općine) level, the party of the majority nationality frequently put its own people into all key positions.6 Thus the election results of 1990 began a process of eliminating ethnic rivals which might be seen as the beginning of political “ethnic cleansing.”

Geographical Partition: Maps and (Dis)Agreements, 1991–92

It was clear from the ethnic map of B&H that the republic could not be divided without massive movements of populations. However, the politi-cal results of 1990 in Yugoslavia made such movements inevitable. First, the practical consequences of the political outcomes of 1990 meant that local administrations were becoming chauvinistic ones, while two of the three constituent parties of the republican government were committed to ensuring that there would be no effective central authority in B&H. Thus there would be no central government protection against discrimi-nation at the local level. Second, the existence of the new chauvinistic de facto nation-states of Croatia and Serbia7 meant that Croat and Serb

6 See Vladimir Goati, “Politički život Bosne i Hercegovine 1989– 1992,” in Bosna i Herce-govina izmedju rata i mira, pp. 48–49. The ethnonational division of the supposedly trina-tional central government of B&H was apparent in 1992–93 in the presence of government officials as representatives of the Muslims in negotiations with international mediatory bodies. In one of the clearest manifestations of this division, the Prime Minister of B&H, a Croat, accepted the Vance-Owen plan in February 1993 at a time when the plan was rejected by the Muslims in that government. The Foreign Minister of B&H, a Muslim, then explained to the press that the Prime Minister of B&H was speaking only as a member of the Croat delegation to the talks in New York (Pittsburgh Post-Gazette, 11 Feb. 1993, p. A-6). The Prime Minister responded by sending a letter to the Chairman of the European sub-committee of the U.S. Senate’s Foreign Relations Committee saying that both the Foreign Minister and the President of B&H, Alija Izetbegović, represented only the Muslim side in the negotiations and not the government of B&H (New York Times, 28 Feb. 1993, p. 8). With this exchange in mind, it is doubtful that the supposed trinational government could be said to exist.

7 Despite their leaders’ rhetoric about democracy, the post-socialist transition in Ser-bia and Croatia was the replacement of one totalizing state structure with another, but with the state now pledged to advance the interests of the majority ethno-nation over the minorities rather than the working class over the bourgeoisie. The “class enemy” was thus replaced by supposedly threatening minorities. The change may be described as being from state socialism to state chauvinism (see Robert M. Hayden, “Constitutional National-ism in the Formerly Yugoslav Republics,” Slavic Review 51(4), pp. 654–673 [1992]).

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politicians would work to annex much of the territory of B&H to their own states. Since Serbs and Croats accounted for about half of the popula-tion of B&H, and controlled much of the territory and virtually all of the weapons there, the chances of resisting the Serbo-Croat desire to partition the republic were minimal.

These chances virtually disappeared in March, 1991, when the Presi-dents of Serbia and Croatia met on the border between their two republics and discussed a variety of topics, one of which was the division of B&H between them.8 Whatever the details of this agreement may have been, the general idea of the division of B&H between Serbia and Croatia was from then on basic to both the Serbian and Croatian national objectives.

The first map of a proposed division of B&H into “cantons” was put forth by the SDS in late 1991, and a Croatian proposal for Croatian cantons soon followed. These maps were not by any means identical, yet the ter-ritories claimed by Serbs and Croats do not overlap too much, except in the northern region of Posavina. The Croatian map does claim substan-tial amounts of territory that the Serbian map awarded to the Muslims. Putting the two maps together, however, indicates the broad outlines of a division in which the Muslims would be given only the central part of B&H and the far northwestern tip of the republic. As will be seen, this division has been accomplished by the Serbs and Croats since the start of the civil war in April, 1992.

The facade of a tripartite, trinational coalition in B&H was destroyed in October 1991 when the Croats and Muslims joined forces to pass a resolution declaring the “sovereignty” of B&H, over the objections of the SDS and after the withdrawal in protest of most of the SDS members of the republican assembly. This vote set up the political configuration of the official governmental organs of B&H: a coalition of the HDZ and the SDA on severing B&H from Yugoslavia. At the same time, outside of these organs of government, the Serbs and Croats continued to cooperate in dividing B&H between them, as will be seen. The seeming incongruity between the Croats’ official alliance with the Muslims in the B&H govern-ment but active cooperation with the Serbs who rejected that government was not in fact contradictory, because the Croatian view of a “sovereign”

8 The details of these discussions have remained secret. However, that they included at least a general agreement on the division of B&H has been generally accepted by all reporters and other analysts of Yugoslav politics, at the time of the meeting and since then (see V. Jankovic and A. Borden, “National Parties and the Plans for Division,” Balkan War Report 16 (Nov./Dec. 1992: 8–9).

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B&H was that it could only be composed of autonomous provinces or “cantons.” Since the Croat cantons could then for all practical purposes merge with Croatia, the Croatian support for a “sovereign” B&H was a cover for dividing it with the Serbs, thus forming Greater Croatia as well as Greater Serbia, while denying that they were doing so.

When the European Community announced that any Yugoslav repub-lic that wanted to be recognized as an independent country would have to apply for recognition by the end of December 1991, the Muslim-Croat coalition at the level of the B&H parliament and Presidency led to the Presidency’s requesting recognition over the objections of the Serbs and without the Serb members participating. The B&H parliament, also with-out Serb participation, voted in January to hold a referendum on inde-pendence, in order to meet what the EC had viewed as a condition of recognition. The referendum, which was boycotted by the Serbs, was held on 29 February and 1 March 1992, and was virtually unanimously in favor of independence.9 Meanwhile the SDS had proclaimed its own Serbian Republic of B&H within B&H, to be independent if B&H proclaimed inde-pendence. The EC recognized the independence of B&H on April 6, 1992 and the United States did so on April 7. The Serbian Republic of B&H proclaimed its own independence from B&H on April 7, and the SDS rep-resentatives withdrew from all B&H institutions the following day.10 Full-scale civil war broke out shortly thereafter.

While the tripartite coalition in the government and parliament were thus breaking down, the same three parties carried on a series of nego-tiations under the auspices of the European Community. At the end of February, 1992, the three national parties were reported to have agreed on a map for an ethnic division of B&H into seven regions, two each for

9 It is often asserted that the EC’s Arbitration Committee, the Badinter Committee, had stated that a referendum would establish the will of the people of B&H in regard to independence. However, the Committee had in fact said that a “referendum vote in which all of the citizens of B&H would participate” could “possibly” establish the “will of the Bosnia-Herzegovina populations to constitute B&H as a sovereign and independent state” (see European Community Arbitration Committee Opinion No. 4 – The Recognition of Bosnia-Herzegovina, reprinted in Yugoslav Survey 1992 (1), at p. 125 [emphasis added]). Since the Serbs boycotted the referendum, they did not participate in it, and it could thus not be seen as an expression of the will of the “populations” of B&H to establish an inde-pendent and sovereign state.

10 Thus, by the logic of the Badinter Committee’s opinion on the status of the SFRY of December 17, 1991, the Socialist Republic of Bosnia and Herzegovina was also in a “process of dissolution;” but where this term was used to justify revoking recognition of the SFRY, B&H was granted recognition by the EC as a single state.

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Muslims and Croats, three for Serbs. While no two regions allocated to any of the national groups would be adjacent, the theory was that all of the regions belonging to each group formed one constituent province of B&H; thus the seven geographically distinct entities would be three con-stituents of the B&H state. This much was reported to have been agreed to in a document on “Basic Principles for a New Constitutional Structure of B&H.”11 However, agreement was not reached on anything else, and the discussions were continued.

The next stage in these negotiations was reached in mid-March, 1992, when the EC’s special mission took a very active role and more or less insisted that the parties agree to a map that it had drawn and a revised version of the “Principles for a New Constitutional Structure” that it had helped to draft. The “Constitutional Principles” now defined B&H as “one state composed of three constituent units, based on [ethno]national prin-ciples and taking into account economic, geographic and other criteria.”12 This was a significant change from the version of two weeks earlier, which had not specified the definitional criteria. Using these criteria, the EC’s experts had drawn up a map for the reorganization of B&H into “cantons.” While this plan was reported to have been accepted by all three sides, at least as the basis for further negotiations,13 it was soon rejected by the Croats and Muslims. The HDZ stated that “the map was drawn by report-ers” and that the division was too harmful to the Croats to be acceptable.14 The following day the SDA also repudiated the agreement, with its spokes-man at a press conference saying that the party had accepted it a week earlier only in order to avoid being branded as the side that wrecked the negotiations.15 The SDS did not openly reject the document; but since the Croats and Muslims had already done so, there was no need for the Serbs to antagonize the EC by joining them.

The Croats had indeed gotten the worst of the three national parties by the EC’s plan. They would have controlled only 12% of the land, and 59% of the Croatian population of B&H would have remained outside of the Croatian province. By these same criteria, however, the Muslims would have fared best, receiving 44% of the land, and with only 18% of

11  The document is printed in Borba, 29 Feb.–1 March 1992, p. 4.12 Borba, 19 March 1992, p. 2.13 See Borba, 19 March 1992, pp. 1, 2, 3. However, it was also reported that the agreement

had not, in fact, been signed (Vreme, 23 March 1993, p. 7).14 Borba, 25 March 1992, p. 2.15 Borba, 26 March 1992, p. 2.

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the Muslim population remaining outside of Muslim provinces. The Serbs, who would also have received 44% of the land, would have seen 50% of their co-nationals remain outside of Serbian provinces.16

When the parties reconvened in Brussels on 31 March the Muslim leader, Alija Izetbegović, stated that the map of two weeks earlier had been thrown out because “it showed the complete absurdity of a strict division on national lines.”17 The HDZ leader at the negotiations also regarded the “elimination” of that map as the most important result in Brussels.18 At the same time, however, he also supported the appointment of a “work-ing group” composed of three members from each of the three national parties plus three members from the EC, to draw up a new map of B&H, defining the borders of the constituent units based on the nationality principle, along with economic and historical criteria, as well as “histori-cal, confessional, cultural and educational, transport and communication [factors], and the will of the inhabitants, to the measure in which the members of the working group agree.”19 Such a group was formed. It was supposed to make its decisions unanimously and to complete its work by 15 May 1992, which was a tall order.

It was an order that in any case would never be fulfilled. In March armed conflict had already begun in B&H, and the population of the republic began to divide itself, with many leaving homes in areas in which their nation formed a minority for areas in which they could be among the majority. As conflict spread, B&H was a republic as much “in the pro-cess of dissolution” as had been the Socialist Federal Republic of Yugo-slavia in late 1991. However, the EC and US granted recognition to B&H as an independent state, apparently in a desperate attempt to stop this process of disintegration.20 Rather than stopping the fighting, however, this recognition triggered the outbreak of full-scale civil war; just as they had said they would, the Serbs proclaimed their own independence from the independent B&H and began to establish it militarily. The recogni-tion of B&H without first having secured a political solution agreeable to the Serbs thus forced the issue of Serbian inclusion in the republic and

16 Figures on control over land and populations remaining outside of regions controlled by their own nation are from Vreme, 23 March 1992, p. 7.

17 Borba, 1 April 1992, p. 1.18 Borba, 2 April 1992, p. 2.19 Borba, 2 April 1992, p. 2.20 See Paul Shoup, “Uloga domaćih i medjunarodnih aktera,” pp. 103–105. That recogni-

tion was a desperate effort to save B&H when it was collapsing has also been reported to me by American diplomats who were on the scene at the time.

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induced their formal secession from it. By the time the EC’s negotiations on B&H convened again, in Sarajevo on 12 April, the primary effort was aimed at attaining a cease-fire, with any effort at reaching agreement on a constitutional structure for B&H and the definition of its constituent units suspended.21

One more agreement was reached, however, on the territorial division of B&H, between the leaders of the SDS and HDZ of B&H, who met in Austria on May 6 and agreed on a plan to divide the republic into three regions. This agreement was rejected by the EC, which stated that it would not accept any agreement which did not have the support of all three parties.22

From March 1991 until May 1992, the pattern of division of B&H may thus be summed up as follows: the Serbs and Croats agreed to divide the republic largely between them, explicitly in March 1991 and May 1992, and implicitly in the proposals that they had put forth in February and March 1992 in the course of the EC-sponsored negotiations on B&H. On the other hand, the EC’s plan to divide B&H into “cantons” was apparently accepted in principle by all three parties on 18 March 1992, only to be rejected a week later, first by the Croats and then by the Muslims.

Forced Partition: The Results of the Serb-Croat Military Campaigns

The fighting in B&H has at various times been between Serbs and Mus-lims, Serbs and Croats, Serbs against local Muslim-Croat alliances, and Muslims against Croats. This potentially confusing fighting, however, has followed a clear political and military logic: the division of B&H roughly on the lines agreed to by Serbian and Croatian leaders, from the “mother republics” in 1991 and from the B&H communities since then. This can be seen by comparing maps of military control in late 1992 and early 1993 to the Serbian and Croatian proposals in early 1992 for the division of B&H into ethnic cantons.

A map of military control over the territories of B&H in late 1992, pub-lished by Balkan War Report (Nov/Dec 1992, p. 13), shows the parallel to the Serb-Croat proposals for partition most clearly. By this map, the Muslims control an area around Sarajevo, a central Bosnian region, the northwestern corner of B&H, and enclaves in the east around Goražde,

21  Borba, 13 April 1993, p. 1.22 Borba, 9–10 May 1992, p. 9.

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Srebrenica and Višegrad, all regions awarded to the Muslims or Croats by the Serbian proposal. On the other hand, the Croats control almost all of the parts of these non-Serb regions that had been included in their own proposal, with the exception of an “island” of the općine of Zavidovići and Banovići, north of Sarajevo, apparently ceded to the Muslims. The Croats also control substantially more of Eastern Herzegovina than their origi-nal proposal had called for, particularly in the općina of Trebinje. On the other hand, the Serbs controlled almost the entire region of Posavina in the far north of B&H, which the Croats had proposed for themselves.

A New York Times map from the same period (20 Nov. 1992, p. 7) tells much the same story, with rather more of the central Bosnian region being shown as under joint Croat-Muslim control, and with greater inroads in Serb control of Posavina. A New York Times map from March 6, 1993 shows the Muslim enclaves in Eastern Bosnia to be greatly reduced, and in this form they parallel the Serbian proposals of 1992. In the north, Serb control is highly attenuated at a critical point, threatening the Serbian corridor to their areas of control in the western part of B&H and in the Krajina region of Croatia. The area of Croat control in the south-central part of B&H seems reduced, but this impression is caused by the rather misleading label of the central Bosnian region as controlled by “Muslims and some Croats.” In fact, Croat control over much of the region to the west of Sara-jevo was confirmed militarily in January 1993, as will be described shortly, thus conforming to the Croat proposal of early 1992.

Military control in many cases has been accompanied by what has come to be known as “ethnic cleansing,” a process in which the civilian popula-tion of the wrong ethnicity is driven from the land. This is accomplished through war crimes and terror: murder, rape, beatings, arson, robbery, threats, all aimed at ensuring that the members of the target population who survive will feel so threatened as to leave, and not want to return. While all sides have engaged in this forcible expulsion of members of the other groups, it has been practiced on the widest scale by far by the Serbs,23 presumably because of their need to consolidate and make viable their control over the largest expanse of territory.

23 Documentation of “ethnic cleansing” and other abuses is continuing. Since by far the greatest numbers of atrocities, over the widest expanses of territory, have been committed by Serbs, most international attention has been directed, justly, at the actions of Serbian forces. However, the overwhelming focus of international attention on abuses by Serbian forces has meant that, in practice, Croat and Muslim atrocities remain uncovered or sim-ply acknowledged without detail. Thus Amnesty International, for example, has issued a report on atrocities in B&H that expressly deals exclusively with Serbian crimes: “No

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The military situation in B&H is thus one in which the Muslims have been reduced more or less to the territories allocated to them by the Serbs and Croats before the war began. Serb and Croat territorial consolidations have also been more or less along these lines, except that the Croats have lost most of the region of Posavina in the north to the Serbs, while the Serbs have lost much of Trebinje in the south to the Croats. These devia-tions from what was, apparently, agreed to are based on strategic con-siderations. By taking Posavina, the Serbs have maintained control over a corridor uniting their territories in western B&H and in Krajina with their lands adjacent to Serbia. By taking much of Trebinje, the Croats have tried to protect Dubrovnik and much of the Dalmatian coast from pos-sible Serb attack.

Diplomatic Partition: The Vance-Owen Plan for B&H

In August 1992, international diplomatic activity in regard to Yugoslavia took a major turn with the London Conference. The EC appointed a new mediator, Lord Owen, to work with the personal representative of the Sec-retary General of the UN, Cyrus Vance. These two diplomats convened negotiations in Geneva between the Serbs, Croats and Muslims of B&H, joined at times by representatives of the governments of Croatia, Serbia and the Federal Republic of Yugoslavia, by then consisting only of Ser-bia and Montenegro. The initial result of their activities was a “Report on Progress in Developing a Constitution for Bosnia and Herzegovina,” accompanied by an Annex entitled “Proposed Constitutional Structure for Bosnia and Herzegovina.”24 The Report shows the extent of the disagree-ment of the parties over the future of B&H:

attempt is made here to cover the full range of human rights violations which took place in Bosnia-Herzegovina during this period which also included abuses by Bosnian Croa-tian and Bosnian Government forces.” (Amnesty International, Bosnia-Herzegovina: Rana u dusi – A Wound to the Soul, AI Index EUR 63/03/93 [January 1993], p. 3). The under-standable zeal to pursue the worst offenders has thus left the crimes by the other parties acknowledged in passing, but their extant is unstudied. This understandable bias in inter-national concern has thus provided a propaganda tool for the Serbian nationalist forces to use with their own people: since the Serbs know that atrocities have taken place against them as well as against Muslims, the international neglect of these cases has been used to argue that the world is biased against Serbs.

24 International Conference on the Former Yugoslavia, document STC/2/2, 27 October 1992.

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One of the parties initially advocated a centralized, unitary State, arranged into a number of regions possessing merely administrative functions. Another party considered that the country should be divided into three independent States, respectively for the Muslim, Serb and Croat peoples, with each of these States having its own legal personality, which States might form a loose confederation for the purpose of coordinating certain of their activities. The third party supported a middle position.25

It also noted that, given the intermingled population of B&H, a plan to create ethnically-based states would require the forced transfer of popu-lations, a step condemned by the London Conference, the UN Security Council and the UN General Assembly. Further, the co-chairmen fore-saw that a “confederation” of such states “would be inherently unstable, for at least two would surely forge immediate and stronger connections with neighboring States of the former Yugoslavia than they would with the other two units of Bosnia and Herzegovina.”26 On the other hand, they noted that “a centralized state would not be accepted by at least two of the principle ethnic/confessional groups in Bosnia and Herzegov-ina, since it would not protect their interests in the wake of the bloody civil strife that now sunders the country.”27 The solution proposed by the co-chairmen was

a decentralized state . . . in which many of its principle functions, espe-cially those directly affecting persons, would be carried out by a number of autonomous provinces. The central government, in turn, would have only those minimal responsibilities that are necessary for a State to function as such, and to carry out its responsibilities as a member of the international community.28

The “Proposed Constitutional Structure” was their design to create such a state.

Examination of the proposed constitutional structure, however, indicates that the “state” of B&H would be minimal indeed. As proposed originally, the central government would have responsibility only for foreign affairs, international commerce, citizenship and national defense, along with tax-ation for these purposes.29 However, national defense would actually be

25 Ibid., p. 4. The parties were, of course, respectively the Muslims, Serbs and Croats.26 Ibid., p. 5. This assessment actually constitutes a frank admission that many of the

putative citizens of B&H have no desire to belong to such a state.27 Ibid., p. 5. This assessment explains why many of the putative citizens of B&H

reject it.28 Ibid., p. 5.29 Art. II.A.

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“supervised” by “an appropriate authority designated by the International Conference on the Former Yugoslavia.”30 Economic and other functions usually assigned to a central government, such as central banking author-ity and communications, would be the responsibility of “independent” authorities, “consisting of representatives of all the provinces,”31 rather than of the government. The provinces would “generally” have exclusive responsibility for virtually all other governmental functions, specifically including education, radio and television, provincial communications and airports, energy production, financial institutions and police, among oth-ers.32 The police power would be solely within the competence of the provinces, since it is specified that “all uniformed police [are] to be at the provincial or local level” and that there would be “no uniformed, armed forces” outside of the military at the national level.33

Whatever authority over internal affairs might have adhered to the cen-tral government in the realm of national defense disappeared in the final version of the “Constitutional Principles,” made public in Geneva in early January 1993. A major change in this final version was to drop “national defense” from the competency of the central government, saying instead that “Bosnia and Herzegovina should be progressively demilitarized under the control of the International Conference on the Former Yugoslavia” and banning “the formation of public or private armed units” except for the provincial police forces.34

Along with denying the supposed state of B&H any authority within its borders and the right to self-defense, the January 1993 Vance-Owen plan would put roads between the provinces under international control, in order to ensure the free passage of goods and people and to prevent the movement of military forces or equipment between the provinces.35 Further, the plan would create a variety of courts, ombudsmen and other institutions, under international control, in order to ensure human rights. The effect of all of these provisions would be in essence to create a protec-torate of B&H. While this protectorate would enjoy international person-ality and sit in the United Nations, it would actually not be a functioning state. Indeed, since its own constitutional structure would deny it any

30 Art. V.A.2.31  Art. II.B.32 Art. II.D.33 Arts. V.B.1 and V.B.2.34 “Ustavni principi za Bosnu i Hercegovinu,” art. 5, as printed in Borba, 7 Jan. 1993,

p. 20.35 Art. I.B.4.

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authority within its own boundaries, B&H might be the ultimate “quasi-state.”36 On the other hand, the ten provinces would actually be function-ing states, but none would have international personality.

In this unusual constitutional situation, the identity of the constituent provinces is critical. In this context, the Vance-Owen plan, like that of the EC in March 1992, announced a mixed set of criteria: boundaries of the provinces [are] to be drawn so as to constitute areas as geographically coherent as possible, taking into account ethnic, geographical (i.e. natural features, such as rivers), historical, communication (i.e. the existing road and railroad networks), economic viability, and other relevant factors.37

Supposedly using these criteria, a team of experts drew up a map of the proposed provinces which was published in Borba, 8 Jan. 1993. This map was redrawn slightly to make it more acceptable to the Muslims, and a revised version was signed by both the Muslim and Croat sides on 25 March 1993. Both versions of the Vance-Owen map resemble most the EC’s proposed “cantonization” of March 18, 1992. The major differences between them are as follows:

1.  Croat lands: the original Vance-Owen map consolidates the Croa-tian provinces, giving to the Croats land in the north (Posavina) that the EC plan had allocated to Muslims and Serbs, and in the south- central part of B&H land that had been allocated to the Muslims. The 25 March revision gives a small corridor in Posavina to the Muslims. In the south-east, the Croats are given land in Trebinje district that they had not even asked for in 1992, but which they controlled militarily in 1993. In essence, Vance-Owen gives the Croats everything they asked for in early 1992 except for the island of territory north of Sarajevo, and with the addition of land in Trebinje district that they had not even requested.

2.  Serb lands: Vance-Owen follows the EC plan fairly closely, with a few exceptions. The Serbs gain some land in the far west of B&H at the expense of the Muslims, and are given a land corridor in Foča in the east, linking one of the isolated bits of Serbian territory on the EC map, also at the expense of the Muslims. In the north, the Serbs lose some land in Posavina to the Croats, and they lose the Trebinje strip to the

36 Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge University Press, 1990).

37 Art. I.B.1.

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Croats. Thus the Serbs receive about what they would have received in March 1992; but their holdings, unlike those of the Croats, are frag-mented and largely not contiguous with either Yugoslavia or each other.

3.  Muslim lands: the big losers since March 1992 are the Muslims, who lose land in Posavina and in central Bosnia to the Croats, and territory in the far west and far east of B&H to the Serbs. While the Muslim ter-ritories are contiguous, except for the Bihać island in the far northwest, they are so intermingled in the east with those of the Serbs as to make the viability of each dependent on the other. The March 25 amended map does give some more of the central Bosnian region near Sarajevo to the Muslims, at the expense of the Croats.

The intermingling of the Serb and Muslim provinces in fact gives the lie to the idea that the “experts” who drew the map considered the “geo-graphical, historical, communication and economic viability” factors that were supposed to guide their work. Instead, the map in this area most closely follows the ethnic maps from 1981 and 1991. At the same time, and despite the denial of an intent to promote movements of populations, the map seems to have been drawn in such a manner as to ensure that each province would have a very large majority of one ethnonational group. As Borba noted, the Vance-Owen map, unlike any other maps proposed until then, cut across općina boundaries, apparently with the intent of inducing transfers of populations in those općine in which there was no majority, members of each group going to the adjacent province where they would be in the majority. If such transfers are assumed, then all of the provinces except that in the region of Travnik would have a very large majority of one group.38 In that province, Croats would have a plurality of 45%, followed by Muslims (41%) and Serbs (9.5%). However, the near parity between Croats and Muslims in this province was destroyed mili-tarily shortly after the map was made public, when the Croats attacked Muslim forces in order to solidify their own control over the region.39 In early April, the Bosnian Croat military authorities demanded that Muslim forces and police evacuate territories assigned to Croats by Vance-Owen, thus ensuring absolute Croat control over these provinces.40

38 Borba, 7 January 1993, p. 15.39 See New York Times, 1 February 1993; New York Times, 8 February 1993, p. 8; The

Economist, 23 January 1993, p. 45.40 RFE/RL Daily Report no. 65 (April 5, 1993).

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If the political processes that were made manifest in the 1990 elections are taken into consideration, it is likely that the future of each of these provinces would be one in which the majority nation would consolidate its hold; excluding minorities from power and probably seeking to dis-criminate against them. The Vance-Owen plan tries to counter this ten-dency, first by providing for internationally supervised agencies to protect minority rights,41 second by mandating that at least for the foreseeable future, the government in each province must contain specified numbers of minority representatives.42 When it is recalled that all police power resides with the provinces, however, it is clear that countering this ten-dency towards homogenization would require the direct administration of the various provinces by international forces – a role that would doubt-less be resisted by local residents.

In practice, then, and despite the various condemnations of the forced transfer of populations, the Vance-Owen proposal would effect a partition of B&H into provinces that would quickly become nearly homogenous. Despite the rhetoric about maintaining B&H as a single state, it would not in fact continue to exist, except as a protectorate composed of ten little Bantustans. While it is possible to imagine a future in which these mini-states might coordinate voluntarily for their own survival, this outcome is unlikely, for the simple reason that some of the provinces will have better options available by joining one of the other formerly Yugoslav republics, a point to which I return below.

Losers and Winners in B&H Since 1990

Comparing the maps from 1992 and 1993, several conclusions can be reached. First, the biggest losers overall in B&H are the Muslims. In terms of sheer numbers of victims, they have suffered by far the most casualties.

41  Proposed Constitutional Structure for Bosnia and Herzegovina, Art. VI, and Appen-dix on “International Human Rights Treaties and other Instruments to be Incorporated by Reference into the Constitution of Bosnia and Herzegovina.” It is interesting but not particularly encouraging to note that similar, if less elaborate, international guarantees of the rights of “racial, religious or linguistic minorities” by offering recourse to organs of the League of Nations had been built into the Treaty Between the Principle Allied and Associated Powers and the Serb-Croat-Slovene State, signed at Saint-Germaine-en-Laye, September 10, 1919 (Art. 11), as well as in other treaties defining the new post-Habsburg states signed at that time. These international guarantees were never actually enforced.

42 Document on the “temporary governmental structure in B&H,” published in Borba, 4 February 1993, p. 8.

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Were the Vance-Owen plan to be implemented, the Muslims would in fact end up controlling rather less land than they would have had they accepted the EC’s plan of March 1992, and only slightly more than if they had accepted the Serb-Croat divisions of B&H from 1991 and 1992. If it is not implemented, however, the Muslims will receive even less, since they will be reduced to a small part of central Bosnia and the northwestern tip of the republic.

Second, the biggest winners by far in the partition of B&H are the Croats. The most striking feature of the Vance-Owen plan is that it in fact creates a greater Croatia. Since the Croatian provinces are contiguous to Croatia and are to be totally independent of any central authority in B&H, they will join Croatia, at least de facto. This annexation in fact may be followed by annexation de jure, although it is also possible that Croatia may find it convenient to maintain the fiction of a B&H for a long time to come. If the B&H central government’s constitutional authority over foreign trade is read to mean control over the borders of B&H, a Croat-Muslim coalition in B&H could close the borders to Serbia yet keep them open to Croatia, thus ensuring the permanent weakness of the Serbs of B&H and Krajina. While the Muslims would thus be largely dependent on the good will of the Croats, their mutual desire to control the Serbs would probably make their alliance relatively stable. Further, maintaining the legal fiction of a B&H state would fit with Croatia’s need to support the principle of the inviolability of the borders of the various republics as it attempts to impose its rule on the Krajina region. By accepting the Vance-Owen structure, Croatia gets to have its cake and eat it too in this regard.

The position of the Serbs is less clear. Vance-Owen would put them in about the same position that they would have been in had the EC plan been accepted. However, were they to abandon the territories that they conquered in northern B&H, they would also lose much land that they controlled when the war began, particularly in the strategic area between Serbia and Krajina. Certainly the chances of building a greater Serbia to counter the greater Croatia created by Vance-Owen would be reduced for a probably protracted future. Meanwhile, the ability of Serbia to protect Serbs outside of its borders would be reduced at the same time that hostile actions towards them would be almost certain to increase. Furthermore, the intermingled nature of the Serb and Muslim provinces in northeastern B&H would not be likely to be conducive to stability. Thus the future of B&H under the Vance-Owen map of northern and eastern Bosnia would probably be about as promising as that of Lebanon.

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The Serbian offensive in eastern Bosnia in March and April 1993 con-stituted their definitive rejection of that portion of Vance-Owen, and they rejected the whole plan formally in the parliament of the so-called “Serbian Republic” on April 2.43 This rejection may have been the direct consequence of Vance and Owen’s strategy of making concessions to the Muslims to get them to join the Croats in accepting the plan, thus isolat-ing the Serbs as those who “blocked peace.” From the Serbian perspective, this diplomatic recognition of the legitimacy of a Croat-Muslim alliance aimed at dominating them may have seemed like the ultimate confirma-tion of their future as the subordinate minority in any B&H state, fears raised by the Croat-Muslim declarations of sovereignty (October 1991) and independence (April 1992) over the objections of the Serbs.44 The threats of “sanctions” are not likely to overcome these fears. The Serbs in B&H, like the Turks in the so-called “Turkish Republic of Cyprus,” may be will-ing to pay the price of economic backwardness in order to avoid domina-tion as a permanent and, for now at least, despised minority in a B&H controlled by a Croat-Muslim alliance.

Calling a House Divided a Condominium

In essence, the Vance-Owen plan takes a house divided and proclaims it a condominium. This legal nicety does not remove the divisions. To the contrary, Vance-Owen institutionalizes the partition of B&H. The plan is thus a concession to the political reality inside B&H, but it places that reality into a greater context that has apparently been determined by larger political interests.

The process of partition of B&H has been one in which the leaders of two of the three national groups agreed to divide the republic between them, leaving a small part of it for the third group. Militarily, this division has been more or less accomplished. What is striking about Vance-Owen is that it attempts to reverse only part of the military division while it confirms the other part. To put it bluntly, the Croats have accomplished more than they had even sought in the division of B&H, while the Serbs are pressed to give up much of their gains, and Croat military conquests

43 New York Times, 3 April 1993, p. 1.44 Of course, this realization of their worst fears may well be yet another example of

the self-fulfilling prophecies that Slobodan Milošević’s politics have brought on the Serbs since 1987.

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are ratified while Serb ones are to be rolled back. The effect of this is to create a greater Croatia and to weaken Serbia.

The mechanism through which this political consequence is being accomplished is the maintenance of B&H as a legal entity despite its dis-appearance in fact as a political, social or economic one. B&H, like Leba-non, Cyprus and Sri Lanka, will be treated internationally as if it were a single state, when in reality it has been partitioned, as they have been. Unlike Lebanon, Cyprus and Sri Lanka, however, B&H never was a single state, but is rather a pure creation of international politics.

As these comparisons show, the future of B&H is not likely to be stable. Lincoln and the Bible have it right: a house divided against itself cannot stand. The supposed B&H state is to be imposed on Serbs against their will, and the different treatment of Serb and Croat military gains can only convince Serbs that the creation of this B&H is a device meant mainly to punish and weaken them. They are thus hardly likely to be loyal to B&H. Quite to the contrary, they are likely to work hard to undermine it.

In this context, the intermingled Serb and Muslim provinces of north-eastern B&H may return to haunt those who would insist on imposing this map. These provinces can never be viable economic, social or politi-cal entities, and their definition is premised on the mutual hostility of their respective residents. Their continued existence will be inherently unstable and thus destabilizing. To the parallels with Lebanon, Cyprus and Sri Lanka, one can add Nagorno-Karabakh – all on topography resem-bling Afghanistan.

Partition as Inevitable Tragedy

The partition of B&H is a continuing tragedy. It has resulted in the uproot-ing of millions, and will require the movement of many more before it is completed. It is a tragedy that was unthinkable through June 1991, but became inevitable by the end of that year. Yugoslavia’s brief exposure to relatively free elections brought not democracy, but the replacement of state socialism with state chauvinism.45 The political message that suc-ceeded was one of division, based on the premise, empirically untrue but politically powerful, that the peoples of Yugoslavia could not coexist

45 Hayden, “Constitutional Nationalism in the Formerly Yugoslav Republics.”

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within one state.46 Once this logic of division was accepted, the parti-tion of B&H was as inevitable as the partition of Yugoslavia itself, for if Yugoslavia could not exist as a common state of Serbs, Croats and others, neither could B&H.

The inevitable tragedy of this partition has been made worse by the refusal of the international community to accept that it would happen. A parallel might be drawn with the partition of Britain’s Indian empire in 1947 into India and Pakistan. Once the logic of division was accepted, the maintenance of a mixed province (Punjab in 1947) or republic (B&H in 1992) was not possible. However, where the British bowed to this inevita-bility in 1947 and drew a border between India and Pakistan that divided Punjab, the European Community and the United States refused to accept the borders that the Serbs and Croats had drawn to divide most of B&H between them. Therein lies the root of the war. While the partition of India was ghastly, particularly in the Punjab, it was accomplished in that part of India fairly quickly, because the border was already drawn, and terror was needed primarily to convince people to leave their homes for their new homelands. Few tried to defend their homes, since they knew that that battle had already been lost, and almost all were within a few years integrated into their new countries rather than remaining for long in refugee camps. In B&H, however, this process of partition has been drawn out because the borders were not specified in advance, but instead have been carved by force.

This is not to say that an agreed partition of B&H would have been accomplished without violence. To the contrary, it would have had to have been imposed both diplomatically and militarily on the Muslims, who had the most to lose by partition in all senses. However, had the international community acceded to the partition of B&H that had been agreed by the elected representatives of two of the three national groups

46 The division of Yugoslavia has been so brutal precisely because it is itself unnatural, dividing forcibly peoples who had lived together peacefully for several generations, and who had intermarried in large numbers whenever permitted to do so. In this context, the fact that the war has been fought primarily in the parts of Yugoslavia in which the various national groups were most intermingled is not accidental. The continued peaceful coexis-tence of Serbs, Croats and others in B&H, or in the mixed regions of Croatia (e.g. Banija or Slavonija), would have constituted living disproof of the Serbian and Croatian nationalist ideologies. Since the politicians who won in 1990 based their programs on these ideologies, the communities whose existence would disprove them could not be permitted to exist (see Robert M. Hayden, “Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia,” paper presented at the annual meeting of the American Anthropological Association, San Francisco, CA, 4 Dec. 1992).

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in B&H, who also controlled most of the military force in the republic, the Muslims may well have seen the futility of resisting partition and agreed to an exchange of population. International acceptance of such a partition would have been widely seen as immoral – yet it has already been largely accomplished by the Serbs and Croats by the campaigns of terror that have come to be called ethnic cleansing, which have probably been more wide-spread than they would have been had the division of B&H been accepted in advance. The international refusal to accept the partition of B&H that was made inevitable by the partition of Yugoslavia ensured that it would be accomplished in the worst possible way.

From this perspective, the recognition of an independent B&H was a political and legal act that ran contrary to the political processes within that republic and within all of the former Yugoslavia. Actually creating a real B&H on the ground would thus require the reversal not only of the course of the war, but of the political developments in Croatia and Serbia that produced it. Since that was never likely, the failure to accept the par-tition of B&H made a truly terrible situation much worse.

The comparison with India and Pakistan is instructive in another way, if hardly encouraging. If partition had been accepted, the former Yugoslavia might have settled into a semi-stable state of permanent hostility between Croatia and Serbia, with arms races, border incidents and the occasional war, and with the Muslims of Bosnia playing the role of the Sikhs of Pun-jab. This would not have been a very desirable state of affairs, but once the politics of division were accepted, it was probably the best that could be achieved. The international failure to recognize this political reality has meant that an India-Pakistan scenario would now be optimistic.

In this tragedy, it is best to end with the unattributed Greek verse used by Rebecca West in the dedication of her book on Yugoslavia, published at the time when it was last engulfed in civil war:47

Grant to them the fatherland of their desireAnd make them again citizens of paradise.

April 23, 1993

47 Rebecca West, Black Lamb, Grey Falcon (Penguin books 1989 [orig. 1941]).

CHAPTER FOUR

MUSLIMS AS “OTHERS” IN SERBIAN AND CROATIAN POLITICS

The conquest of Constantinople, it has been said, ‘dealt a wound to European man.’ Few countries could have taken that blow harder or felt it more deeply than Bosnia.

Ivo Andrić, “Preface” to his doctoral dissertation, 1924 (1990: xvi)

Bosnia-Herzegovina is a European country, and its people are European people. Even the evil inflicted upon us has not come from Asia, but has a European origin. Fascism . . . and Bolshevism . . . are European-made products.

Alija Izetbegović, speech to the London Conference, August 26, 1992

In November 1994, newspapers throughout the world carried a terrible picture taken from a broadcast by the Bosnian Serb television station in Banja Luka. Bosnian Serb forces had just carried out a successful counter-attack against what had until then been a successful Muslim offensive from Bihać, taking a number of prisoners in the process. In the picture carried by the print media, a laughing Serb soldier was putting a fez on the head of an understandably distraught Muslim prisoner. The mocking triumph of the first and the fearful misery of the second were apparent in their expressions and postures towards each other, the Muslim attempt-ing to shrink from his tormentor.

I find this grim scene revealing of more than the sheer physical domi-nance of the Serb over his Muslim prisoner. The Serb was forcing a mark of Muslim identity on his victim that the latter had not, in fact, worn him-self. Whatever the nature of the prisoner’s view of his own identity as a Muslim, the Serb felt compelled to impose one upon him.

This scene from Serb television symbolizes a process of imputation of “Islamic” identity on Bosnian Muslims by their opponents that has been contrary to the personal identity of many of the Muslim people of Bosnia and Herzegovina. This is not to say that Bosnian Muslims deny that they are Muslims; rather, the question goes to the symbolism of markers of that

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identity. Whatever many Bosnian Muslims may have thought about their own identity as Muslims, Europeans, or Bosnians, their Serb and Croat antagonists impute to them a cultural essence that dichotomizes Muslim from European, thus denying the possibility of a Bosnia, since it would be composed of incompatibles: putatively non-European Muslims and “Euro-pean” Christians.

This paper explores the content of the labels that have been imposed on Bosnian Muslims by their Serb and Croat opponents. This academic exercise has normative implications. In his study of ethnic fratricide and the dismantling of democracy in Sri Lanka, Stanley Tambiah1 has quoted Voltaire: “If we believe in absurdities, we shall commit atrocities.” Cer-tainly, the images of Bosnian Muslims that have been propagated (and propagandized) by their opponents are absurd for most of the Muslims of Bosnia. At the same time, the fact of this absurdity may be irrelevant in practice, for reasons well established in other realms of intellectual endeavor. The first, drawn from structural anthropology, argues that the fact of distinction is more important than the markers of that distinc-tion. Put another way, once units of a system are defined in contrast to one another, the characteristics that supposedly distinguish them may change without changing the basic distinction among the units, or that they remained defined in contrast to each other.

The second reason for pessimism of the intellect, and thus perhaps also of the will, stems from the well-known phenomenon of self-fulfilling prophecy, although in the case of Bosnia, self-fulfilling history might be a more appropriate phrase. The ferocious rejection of a multi-national (in European terms) or multi-ethnic (in American terms) Bosnia and Herze-govina by the leaderships of most Bosnian Serbs and Herzegovinian Croats has reinforced those Bosnian Muslim leaders who would prefer to create a Muslim state rather than a civil society. Just as many Serbs in Croatia did not define themselves primarily as Serbs until the Croatian national-ist regime of Franjo Tudjman defined them outside of the bodies political and social in Croatia,2 many Bosnian Muslims now see Islam as central to their identity, and to that of their country, since other forms of identity,

1  Tanley Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy, (Chi-cago: University of Chicago Press, 1986), p. 5.

2 I am quoting Milorad Pupovac, leader of the moderate Serbs who have remained in Tudjman’s Croatia and who are trying to reach accommodation with the Croatian gov-ernment. Pupovac refers to himself, but the number of Serbs in Croatia who identified themselves as “Yugoslavs” until 1991 was high.

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both of sate and of nation, are foreclosed. Thus the Serb and Croat insis-tence on the supposedly Islamic character of the Bosnian Muslims may lead many of the Muslims to become more Islamic.3

Orientalist Discourse: Muslims as Non-European

In the recent political discourses that brought about the dismemberment first of the former Yugoslavia, then of Bosnia and Herzegovina, much of the rhetorical power of some positions has come from a literally oriental-ist framework, assertions that those peoples to the east (or occasionally, to the south) of the writer’s own nation (narod) are not European and are thus inferior.4 In this rhetorical framework, the definitive non-European essence is Islam, embodied territorially in what was the Ottoman Empire. Thus the Balkans, as a part of the European continent that was under Ottoman, hence oriental, rule is distinguished from Europe “proper.”5 As Maria Todorova is reported to have said at a conference on “The Ottoman Legacy in the Balkans,” the Ottoman legacy is “the Balkans.”

The political point of orientalist rhetoric is to exclude the “Other.”6 Within the former Yugoslavia, the overall orientalist framework is appro-priated by aspiring leaders of the different Yugoslav peoples to produce a “nesting” set of rhetorics, distinguishing “those parts of the [former] coun-try that had been ruled by Europe ‘proper’ from parts ruled by Orientals and hence ‘improper;’ and of those ‘improper’ parts of Christian Europe to

3 The idea that ethnic Muslims (meaning those of Muslim descent, whether or not they are religious) may not be religious or cultural Muslims is not at all contradictory, and is in fact the basis for Alija Izetbegovic’s 1980 call for “the Islamization of Muslims” in his The Islamic Declaration, (Sarajevo: no publisher, 1990).

4 Milica Bakić-Hayden, “Orientalist Variations on the Theme ‘Balkans’: Symbolic Geog-raphy in Recent Yugoslav Cultural Politics,” Slavic Review, 51 (1992), 1–15. See also Milica Bakić-Hayden (1994) “Nesting Orientalism and Their Reversals in the Former Yugoslavia.” Revised version of paper presented at the annual meeting of the American Association for the Advancement of Slavic Studies, Honolulu, Hawaii, November 1993. Compare with Maria Todorova “The Balkans. From Discovery to Invention,” Slavic Review, 53, (1994), 453–482.

5 Bakić-Hayden, “Nesting Orientalisms.”6 Samuel Huntington’s recent juxtaposition of “the West versus the rest” in his “The

Clash of Civilizations?” in Foreign Affairs, 72: 3 (1993), 27–49, would seem a perfected par-ody of Orientalist discourse, were it not for the fact that Huntington apparently believes it, as do many “policymakers.” Positions such as Huntington’s exemplify the “cultural fun-damentalism” that seems to be replacing classical racism as a rhetoric of exclusion, par-ticularly in Europe. See Verena Stolcke, “Talking Culture: New Boundaries, New Rhetorics of Exclusion in Europe.” Current Anthropology 36 (1995), 1–24.

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Orientals ‘proper,’ European Muslims who further distinguish themselves from the ultimate Orientals, the non-Europeans.”7 The layers of nesting in regard to Bosnia are exemplified in a statement by an official of “Herceg-Bosna,” the self-proclaimed Croatian quasi-state within Bosnia and Her-zegovina, warning that it is necessary “to pay attention to the essentially different mental make-up and value system of the creator of the Islamic Declaration [i.e., Alija Izetbegović] and his followers from those of the European-oriented Christians, even if they [Serbs] are on the margins of civilization.”8

Izetbegović’s remarks at the 1992 London Conference, quoted at the head of this paper, are a bitter counter to such orientalist images, both of Bosnian Muslims as “non-European” and of European superiority. Yet hegemony is hard to challenge, particularly when one’s opponents are so willing to use the hegemonic arguments, reproducing them thereby. The Europeaness of Christianity and the non-Europeaness of Islam is an essen-tial contrast in the message of the dominant political forces of both the Serbs and Croats. Indeed, both Serbs and Croats claim to be defending “Europe” from Islam, the former by preventing the creation of a power-ful Muslim state called Bosnia, the latter by using the American idea of a “Croat-Muslim Federation” within Bosnia that is then to be linked in a “confederation” with Croatia as limiting the power of Islamic “fundamen-talists” in Bosnia.9 Thus a Serbian complement to the Croatian sentiments quoted in the last paragraph can be seen in the words of Dragoš Kalajić, a Serbian painter: “The fact of an Islamic onslaught on Western Europe by peaceful means, by means of mass immigrations, threatening to turn European nations into national minorities within their own states, only accentuates the importance of the Serbian struggle for the overall defense of Europe, European culture and civilizations.”10

7 Ibid., p. 6.8 Slobodan Lovrenović, Danas (11 August 1993), 22.9 The putative “federation” within Bosnia does not, in fact, exist on the ground (see

the New York Times, (February 19, 1995); Balkan War Report (December, 1994; and January, 1995)). This “federation” was entered into reluctantly by the Croats, who have worked to ensure that it has and will have no central governmental authority of any kind. For this reason, I have viewed the constitution of this “federation” as an imaginary constitution for an illusionary federation. (Robert Hayden, “The Constitution of the Federation of Bosnia and Herzegovina: An Imaginary Constitution for an Illusory ‘Federation’,” Balkan Forum 2 (1994), 77–91).

10 Bakić-Hayden “Nesting Orientalisms.” See references to Borba 6–7 (August 1994), xvii–xix.

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The Strategic Nature of “Othering”

Nationalist evocations of this type ground their arguments in the assump-tion of a continuity of cultural essence, and of national oppositions, that exists unchanged through centuries – in this case, that the Muslims (Bosnian and Albanian) now in the former Yugoslavia are in essence the same as the Turks who imposed Muslim rule on the Balkans, while the Christian peoples, now as then, shield the West from the Orien-tal onslaught. Yet the seeming historicity of these assertions masks the strategic nature of characterizations of the essence of the “Other.” Serb nationalists throughout the 19th century regarded Bosnian Muslims as being lapsed Serbs, who should be reintegrated with their Serb brothers and also, usually, with the supposed faith of their ancestors. At the same time, the dominant Croat ideologies also regarded Bosnian Muslims as the best Croats.11 Of course, these characterizations of Muslims as “really” being Serbs or Croats coincided with political positions that argued for the incorporation of Bosnia into a greater Serbia or a greater Croatia.12 Even in 1990 and 1991, Serb politicians who sought to induce the Muslim leader-ship to incorporate Bosnia into a post-Yugoslavia greater Serbia pointed out similarities between the cultures of Slavic Muslims and Serbs.13 It should be noted that such favorable comparisons between Bosnian Mus-lims and Serbs distinguished the Slavic Muslims from their Albanian co-religionists, the latter being described, inevitably, as “fundamentalist.”

With this point in mind, it is necessary to remember that the recogni-tion that segments of a population are defined by particular differences – of “race” or “ethnicity” in America, “community” in India, “nationality” in Europe – by whatever criteria are locally in use does not have to mean hostility. To the contrary, some political actors may find it advantageous to attempt to minimize the importance of acknowledged differences,

11 Ivo Banac, The National Question in Yugoslavia (Ithaca, N.Y.: Cornell University Press, 1984).

12 These parallels were parodied in brilliant fashion by the Croatian satirical weekly Federal Tribune, in its issue following the announcement of the Croat-Muslim “federation” in Bosnia (March 7, 1994). The front page showed a montage picture of Alia Izetbegović, flanked by Croatian flags and wearing the sash of the President of Croatia, with the cap-tion a Serbian slogan from the time of the founding of Yugoslavia “Screw the country that doesn’t have Bosnia” [Jebeš zemlju koja Bosne nema].

13 M. Bakić-Hayden, “Nesting Orientalisms.” See references to Biljana Plavšić, 1991, quoted on p. 19.

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often by asserting that the similarities among this particular set of dispa-rate peoples unites them all despite their differences.

The paradigmatic attempt to find such “unity in diversity” may be Nehru’s The Discovery of India (1946). After noting and even exploring the “tremendous” variety of the peoples of India, Nehru discounts them by saying that “Differences, big or small, can always be noticed even within a national group.” He then defined the unity of Indians by comparing them to other national groups, saying in essence that Indians were a nation because “at almost any time in recorded history an Indian would have felt more or less at home in any part of India, and would have felt as a stranger and an alien in any other country.”14 In other words, Nehru defined Indi-ans as a nation, despite their differences, because all of the varieties of Indians are more similar to each other than to peoples outside of India.

Despite assaults on the Nehruvian definition of the Indian nation,15 it remains dominant within India today. Yet the India of which Nehru wrote in 1946 stretched from the eastern border of Afghanistan to the western border of Burma, including, in other words, what are now Pakistan and Bangladesh. Mohammed Ali Jinnah, who wished to form a separate state for India’s Muslims, rejected Nehru’s category of “Indians” for them, for-mulating and then implementing the “two nation theory,” which held that India’s Muslims were a separate people from its Hindus. Strategically, the assertion of essential difference was as crucial to Jinnah’s demands for partition as was the assertion of essential unity for Nehru’s demand for a unified India. The difference was, of course, that the assertion of unity presumed cooperation, while that of difference presumed hostility. Empirically, Jinnah was wrong, as Muslims and Hindus continue to live intermingled within India, as they had for a thousand years before the partition of 1947.16 Yet Jinnah’s success has had the effect of rendering India’s remaining Muslim population vulnerable to the charge of being disloyal to India, thus weakening their political position there.

Within the former Yugoslavia, the “unity in diversity” approach was manifested in the Titoist slogan of “brotherhood and unity,” which was part of the ideological justification of the joint state of the South Slavs,

14 Jawaharlal Nehru, The Discovery of India (New York: John Day, 1946).15 Ashutosh Varshney, “Contested Meanings: India’s National Identity, Hindu National-

ism, and the Politics of Anxiety,” Daedalus, 122 (1993), 227–261.16 Note that “living intermingled” does not presume amicability or preclude occasional

unrest. It does preclude the kinds of “ethnic cleansing” practiced in Pakistan in 1947 when almost all Hindus were driven from the new Muslim state.

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and expressed in the first section of the Introductory Part of the Yugo-slav Constitution of 1974. Strategically, it was as necessary for those who wished to partition Yugoslavia in 1991 to negate this principle as it had been for Tito to assert it in 1943, when he re-founded the new Yugoslav state. Ironically, those who posited the incompatibility of the Yugoslav peoples in 1991 were even more wrong, empirically, than Jinnah had been in pre-partition India in 1947: after 45 years of life together in the second Yugoslav state, the peoples of Yugoslavia were increasingly commingled, both territorially and in terms of intermarriage. But those who were most intermingled have paid the highest price: the recent wars have taken place in the most mixed regions of Croatia, Slavonija, and Baranja) and in the most mixed republic, Bosnia and Herzegovina, precisely because a mixed region is now incompatible with the dominant political ideologies of the nation-state.

What is striking about the current strategies of Serb and Croat national-ism, however, is their virtually complete exclusion of Muslims. Even most of those Serbs and Croats who see Bosnian Muslims as being descended from lapsed members of their own nations express little wish to see their wayward kindred returned to the flock, in what may be a manifestation of the extent to which inherited religious affiliation has now become the one supreme criterion of ethnicity among the speakers of the various dialects of Serbo-Croatian.17

What is important to keep in mind is that the Serb and Croat strate-gies of “Othering” in Bosnia have the same goal as Jinnah’s similar effort in India in the 1940s: justifying partition. It is also important to note that the empirical falsity of the Serb and Croat assertions of inevitable and age-old hostility between Muslims and Christians in Bosnia is as irrelevant to the political processes as the similar falsity of Jinnah’s picture of Hindu-Muslims relations in 1947. Reality may be socially constructed, but it is reality.

The Vanishing Category of “Bosnians”

One way to counter the Serbo-Croat call for the partitioning Bosnia would be to posit the existence of “Bosnians” as an encompassing category for all of Bosnia’s people, just as Nehru posited “Indians” as an encompassing

17 Eugene Hammel, “Demography and the Origins of the Yugoslav War,” Anthropology Today 9 (1993), 4–9.

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category for the varied peoples of India. Despite the use of the word “Bosnian” in English-language news media and political speech, however, use of this term as one of self-description has nearly vanished in Bosnia itself. Instead, the population of Bosnia and Herzegovina has partitioned itself into Serbs, Croats, Muslims and “others.” The closest term linguisti-cally to “Bosnian” (bosanac) would be “Bosniac” (bošnjak). However, where bosanac could refer to anyone from Bosnia, bošnjak now has an exclu-sively Muslim referent. “Bosniac” (bošnjak) is used in the Constitution of the Federation of Bosnia and Herzegovina, the Croat-Muslim “Federation” formed at U.S. insistence in March 1994, instead of the term “Muslim” to be equivalent to Serb and Croat as an ethno-national label.

In the former Yugoslavia, bosanac did connote anyone from Bosnia, and had something of a negative connotation; bosanci were regarded as unsophisticated, uncultured “hillbillies” in American terms. Bosnians themselves resented such implications of the term and the condescending ways in which they were often treated by their colleagues in Zagreb, Bel-grade, and Ljubljana.18 At the same time, many of the people of Bosnia did identify themselves as bosanci, Bosnians, religious affiliation unspecified. It is this form of self-description that is now heard less and less often.

The lack of use of the general term “Bosnian” as a noun to describe the population of Bosnia and Herzegovina is symptomatic of the absence of a self-defined Bosnian nation that includes all of the peoples living there. Overwhelmingly, the Serbs and Croats classify themselves apart from the Muslims and from the idea of a Bosnian state, preferring to describe them-selves as Serbs and Croats and to accede to Serbia and Croatia, respec-tively. Many Serbs and Croats of Bosnia and Herzegovina are as likely now to identify themselves as “Bosnians” as the Muslims of Pakistan are to identify themselves as Indians. The Muslim utilization of “Bosniac” to describe themselves stresses their own connection to Bosnia, but thereby implies a Muslim identity for the population of the country. Thus the ter-minologies of description used since 1991 by the peoples of Bosnia and Herzegovina to describe themselves indicate the lack of a shared concept of a Bosnian nation.

18 I am grateful to Zoran Pajić, formerly Professor of Law at Sarajevo University, for reminding me of this point.

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Constructing Differences to Deconstruct the State

The demise of the shared identity of “Bosnians” reflects the success of the politics of partition in the mixed polity, even though the imagery of nationalism would indicate a different dynamic. That is, while nationalists claim that their nation needs its own state because of the putative differ-ences between that nation and the other peoples with whom its mem-bers are at the moment forced to live, it seems more likely that it is the need to establish differences to justify the political goal of partition, rather than the fact of whatever differences do exist, that drives the rhetoric of description. But difference per se is not enough. Separation is called for when the “other” can be seen as inferior or degraded. Thus the image to be created of the “other” must be a negative one.

In this context, the symbolic geography of “the West versus the rest” (as per Huntington) becomes relevant. The tenets underlying this geography are, first, that “the West” is culturally superior to “the rest,” and second, that Islam is not part of Western culture. With these points in mind, it is possible to understand why the Bosnian Serbs and Herzegovinian Croats need to establish that the ethnic Muslims of Bosnia are Islamic in culture. If they are Islamic, they are not European, and if they are not European, they are inferior, thus justifying Serb and Croat demands for separation from them.

The need for the victorious Bosnian Serb in the Bihać region to force a fez onto his captive’s head may now be clear. The visible mark of Islamic culture ensured that “Muslim” was more than simply a label of difference, but rather indicated a culture not only apart from but – in the orientalist rhetorical structure dominant in Europe, including the Balkans – inferior to that of Europe.

Unfortunately, the dynamics of this exclusionary rhetoric are reinforced by the actions of Muslim leaders who stress the importance of Islam to the identity of Bosnia. This is not to deny the logic, much less legitimacy, of their argument. To the contrary, the Muslim cleric who noted in that “it is necessary to preserve the Muslim identity if there is the wish to preserve a multi-cultural Bosnia-Herzegovina”19 is perfectly correct. The problem is that it is precisely their Muslim identity that marks the Bošnjaci as non-European, and hence, in Serb and Croat rhetorics, inferior.

19 Lijljan, (February 8–15, 1995, p. 7), as quoted and translated by FBIS, (February 13, 1995).

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This problem becomes even greater when Bosnian Muslim leaders have looked to Islamic states for political, financial, and military assistance. That the Islamic states have been among the greatest sources of support for the Bosnian government only confirms, to Serbs and Croats, that the Bosnian Muslims are non-European. Rather perversely, the more that the Bosnian government turns for support to the countries most willing to provide it, the more it alienates its own non-Muslim putative citizens.

Bosniacs, Buddhists, Bogomils, or Baptists

The analysis thus far has tied the content of the Serb and Croat rhetorics of exclusion to the Bosnian Muslims’ identity as Muslims and might be seen as implying that these people suffer because of the specifics imputed to that identity. Yet such an assumption is unwarranted. The hostility of the Serbs and Croats to the Muslims is not due to the latter’s identity as Muslims, but rather to their refusal to identify themselves as Serbs or Croats. It is the fact of “Otherness,” not the specifics of the identity of the “Other,” that provides the potential basis for hostility. Whether such hostility is realized and how its specifics are justified depend on the cir-cumstances of time in place. In Bosnia in the 1990s, the Serbs and Croats could adopt the general orientalist framework of Islam as non-European, hence inferior, to justify their own secession from the “Bosniacs” and their Bosnia. Yet, note that it is the political aim, partition, that requires the rhetoric of denigration.

Indeed, I would argue that the Muslims’ identity as Muslims is inci-dental to their treatment at the hands of the Serbs and Croats. Had the Bosniacs identified themselves as Buddhists, Bogomils, or Baptists, they would probably have faced the same hostility, although the contents of the rhetoric used to justify such treatment would doubtless have varied from that recounted here. After all, the Christian Serbs and Croats have used their own sectarian differences to justify mutual hostility, and they treat each other in the same manner that each treats the Muslims where their interests conflict. It is simply because the Bosnian Serbs and Herze-govinian Croats share an interest in ensuring that no effective state of Bos-nia and Herzegovina exists that their rhetoric in regard to the Muslims, and their treatment of them, are so closely parallel.

Were the Bosnian Muslims instead Buddhists, the Serb and Croat rhet-oric of exclusion used against them would probably reveal the same orien-talism that marks the current depiction of Muslims. Were they Bogomils,

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a similar rhetoric might be used; after all, the Bogomils would hardly be within any mainstream of European Christianity. Were they Baptists, a different rhetorical stance would of course be taken; but Northern Ireland has shown that such sectarian hostility can easily include Protestants in contemporary Europe.

If the Bosniacs were instead Buddhists, Bogomils, or Baptists, the pri-mary difference that we might see would probably be in regard to their international support. Were they Buddhists, they might attract support from the ASEAN countries instead of from the OIC. Were they Bogomils, they would probably have as much international support as the Copts of Egypt or the Druse of Lebanon; in other words, not much. Were they Baptists, more support might come from the United States.

In the end, then, the Islamic identity of the Bosnian Muslims may be seen as the factor that determines the specific content of the rhetoric used to justify Serb and Croat separation from them; it is also the pri-mary determinant of their support from the Islamic countries. It is not, however, the cause of their persecution. The victimization of the Bosnian Muslims is based on the simple fact of their difference from the Serbs and Croats, which now excludes them from the Serb and Croat definitions of their nation-states. This has also induced the Serbs and Croats to remove themselves from the Bosnian state that they refuse to share with each other, or with any other “Other.”

CHAPTER FIVE

IMAGINED COMMUNITIES AND REAL VICTIMS: SELF-DETERMINATION AND ETHNIC CLEANSING IN YUGOSLAVIA1

You know, I’m a Hegelian: I know that the suffering of individuals is irrelevant to the greater processes of history.High official of the government of the “Republika Srpska,” the Serbian seces-sionist government in Bosnia, otherwise a philosophy professor, in answer to a question about the future for people in or born of mixed marriages, in an interview with the author, March 1994.

Of course, it would be best to resolve problems with the minorities through negotiation, but we should never rule out military force.High official of the Committee for Human Rights and Rights of Minorities of the parliament of the Republic of Croatia, otherwise a historian, in an interview with the author, March 1994.

We will not become a nation until being a Serb is more important than living where your ancestors lived.Dr. Radovan Karadžić, President of the “Republika Srpska”, otherwise a psy-chologist, in a television address, September 13, 1995.

The collapse of the former Yugoslavia has been accompanied by violence that has shocked the world, particularly because it is happening in Europe, albeit in the Balkans.2 The horror and revulsion that anthropologists feel as much as others (see SAE Committee 1994) may, however, obscure the

1  The research reported here was supported in part by the National Council for Soviet and East European Research; but the opinions expressed herein are exclusively those of the author and cannot be attributed to the National Council. Earlier versions of this paper were presented at the annual meetings of the American Association for the Advancement of Slavic Studies (Phoenix, AZ, 11/92), the American Anthropological Association (San Francisco, CA, 12/92), and the Law & Society Association (Chicago, IL, 5/93). The paper has benefitted very much from the comments of several anonymous reviewers for the American Ethnologist and from those of Don Brenneis and Michael Herzfeld.

2 Attempts to distinguish “the Balkans” from “Europe” have been central to much of the political discourse over the legitimacy or necessity of political acts concerning Yugo-slavia’s collapse and subsequent wars, by Yugoslav politicians and by those on the world stage who have had to deal with them (see Bakić-Hayden and Hayden 1992, Todorova 1994, Bakić-Hayden 1995). Considering the extent of the devastation that Europeans have wrought on each other, to say nothing of the rest of the world, in what Gunther Grass (1992) has called “the century of expulsions,” such rhetorical exercises are suspect, and are rejected here.

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logic of the wars of the Yugoslav secessions and succession, particularly the fatal incompatibility of the objectified or reified cultures (cf. Handler 1988: 14–16, and Kapferer 1988: 22,4) at the base of the several nationalist enterprises with the living cultures of the areas that have been the sites of the worst violence.

The geography of the violence is an important consideration, because the wars in Yugoslavia since 1991 have taken place almost entirely within regions that were the most “mixed,” where the various nations of Yugosla-via were most intermingled. The extraordinary violence that has shattered these places was not the “fury of nationalist passions long repressed by communism,” as many journalists and politicians would have it. Instead, I argue that the wars have been about the forcible unmixing of peoples whose continuing coexistence was counter to the political ideologies that won in the democratic elections of 1990. Thus extreme nationalism in the former Yugoslavia has not been only a matter of imagining allegedly “primordial” communities, but rather of making existing heterogeneous ones unimaginable. In formal terms, the point has been to implement an essentialist definition of the nation and its state in regions where the intermingled population formed living disproof of its validity: or, the bru-tal negation of social reality in order to reconstruct it.

It is this reconstruction that turns the imagination of community into a process that produces real victims. This is not a Cartesian distinction, or a manifestation of an analytical attachment to a symbolic-materialist framework. The fortunate members of the imagined community are as material as the unfortunates who have been excluded. Instead, I wish to pursue the power of a system of reified, prescriptive culture to disrupt the patterns of social life – culture in an analytical sense – that would con-tradict them. The point is certainly structuralist as per Mary Douglas, in that “ethnic cleansing” is (to state a sanguinary process in a sanguineless manner) the removal of specific kinds of human matter from particular places. At the same time, “ethnic cleansing” may also be a corollary to an inverted Levi-Straussian myth of nation, a myth which does not provide a logical model capable of overcoming a contradiction in existing social structure, but instead proclaims that existing social structure is contrary to logic, and must, therefore, be destroyed.

Conceptually, the violence of ethnic cleansing may thus be seen as deriving from the clash of a prescriptive model of culture, culture-as-ideology, with existing culture, culture-as-lived, that is not in accordance with the prescription. Phrasing the matter in this way is not to privilege the traditional subject matter of anthropology, but rather to accommodate

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the current importance in “the West” of culture-as-ideology, what Vera Stolcke (1995) has termed “cultural fundamentalism,” as the key term in a rising political rhetoric of exclusion in Western Europe. A similar dis-tinction, accommodating another rhetoric of exclusion and domination, is Ashis Nandy’s differentiation (1990: 70) of “faith,” or “religion as way of life,” from “ideology,” “religion as . . . identifier of populations” in South Asia. “Religious nationalism” in India (van der Veer 1994) or its civil coun-terpart and rival, Indian “secular nationalism” (Varshney 1993) is compa-rable analytically to the “cultural nationalism” of Europe.3 In both cases, what is contrasted is the difference between prescriptive views of what “culture” or “religion” must be, and the ways in which people in particular places actually live. Note that the imperative here is not only normative, what the culture should be, but also supposedly descriptive, reproducing assumptions of the way the world really is, which is why the purported cultural deviation is abnormal.

At a time when many anthropologists routinely challenge any form of empiricism, a contrast between “ideology” and “the way people actually live” may seem naive. Yet surely patterns of social life, such as use of one script instead of another, rates of intermarriage, or rates of utilization of lexical items, are observable, and may often be incongruent with pre-scriptive views of what such patterns should be. It is this incongruence, between the present reality of life as lived and the objectification of life as it suddenly must be lived, that produces the mortal horrors of ethnic cleansing.

Thus the juxtaposition of “reality” to “imagination” in my title has more than rhetorical bite. The point of the analysis is to show the logic of the translation of category violation into mass violence, to adapt Michael Herzfeld’s (1992: 33) comment on Peter Loizos’ work (1988) on intercom-munal killing in Cyprus. Where Loizos was concerned with explaining the violence of certain individuals, however, I wish to consider the logic of the category system on which the ethnic nation-state is based. This is not a matter of the production of “indifference,” defined as “the rejection of common humanity” or as a “denial of identity” (Herzfeld 1992: 1). To

3 While I cannot explore the matter in this paper, I suggest that what Gunnar Myrdal (1944) identified as the basis of the “American dilemma,” racism, is paralleled in different idioms elsewhere, such as a “European dilemma” of nationalism, or a South Asian one of “communalism.” Note that in all cases, the dilemma is a moral one, caused by the per-sistent existence of supposedly “natural” distinctions in polities that profess aspirations towards democracy.

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the contrary, the processes I analyze recognize people as humans (albeit, perhaps, as inferior ones) and assign consequences to identities that the subjugated group does, in fact claim. Serbs in Croatia, for example, may claim that identity more frequently now than they did in the past, when many self-identified as “Yugoslavs.” The meaning of the identity, however, has changed.

Constitutions as Impetus for Ethnic Cleansing

This paper looks at the constitutions of the successor republics to the for-mer Yugoslavia as manifesting and institutionalizing nationalist ideologies that aim to construct homogenous nation-states in heterogeneous terri-tories. I am concerned with the logic of the construction of a particular kind of state, the nation-state, when the word “nation” has connotations that Americans view as “ethnic.” When Croatia is defined as the “nation state of the [ethnic] Croat people,” or Slovenia the state of the sovereign Slovene people, “We, the people” has a very different meaning than it does in currently dominant American imagery.

Constitutions are among the most important subjects for study of the implementation of nationalist ideologies precisely because they are meant to be constitutive, providing not only the conceptual framework for the state, but the institutional means to make the state conform to that model. When the states envisioned by the constitutions exclude many residents from the bodies political and social, as in the state successors to the former Yugoslavia, the seemingly bloodless media of constitutions and laws are socially violent, and may often induce bloodshed. The initial goal of this paper is thus to connect the cultural construction of “nation” with the legal constitution of states, in the context of the former Yugo-slavia and its successor republics. The analysis promises to be useful for other cases of ethnic nationalism, since some of the constitutional and legal phenomena found in the ex-Yugoslavia cases have close parallels elsewhere, particularly in Europe.

Of course, the homogenization of a heterogeneous polity may be achieved through forced assimilation as well as through expulsion, or through border revision (see Macartney 1934: 427–449). While compulsory assimilation may be less overtly violent than what is now called “ethnic cleansing,” the two processes are based on the same principles, and seem merely different strategies to bring about the same end. Resort to physical violence is made where cultural geography is most heterogeneous, thus

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making difficult domination by non-violent means (see Hayden 1995). The present paper considers “bureaucratic ethnic cleansing” as well as direct violence, recognizing both as consequences of the same logic in different social settings.

Long-Distance Fieldwork: The Ethnography of Ideology

Analyzing constitutions as mechanisms for turning nationalist ideologies into social practice is an enterprise for which traditional models of eth-nography seem inapposite. The analysis of nationalist movements must be based on an analysis of texts produced by the proponents and opponents of any particular nationalist vision (see, e.g., Handler 1988: 27–29; Verdery 1991: 19–20), thus taking the post-Geertzian metaphor of culture-as-text to perhaps its ultimate extreme. Yet these texts cannot be analyzed in isolation of the field of social relations in which they have been produced, read, and reacted to (Verdery 1991: 20). Fieldwork in the societies that are the referents of specific nationalist discourses seems to be a prerequisite for such a contextual analysis of nationalist texts. Certainly the meaning of a text varies with the audience reading it; but in the study of national-ist ideologies, the range of meanings that authors of texts and their pri-mary audiences had in mind is ascertainable. To ascertain it, however, requires deep knowledge of the field of social relations that can only be achieved through protracted participation and observation in the society under study.

Yet the fieldwork required may be of a kind that does not fit into the traditional anthropological mode of “being there.” Once one has acquired a substantial base of knowledge of the social field in which nationalist texts are produced, it is often possible to monitor developments in this social field from a distance. Texts travel, in newspapers, on the radio, and often these days, on e-mail, so that someone in America may have an elec-tronic version of today’s newspapers from India, the former Yugoslavia or elsewhere via the internet. In this connection, there are e-mail networks centering on Serbs and Serbia, Croats and Croatia, Bosnia, Macedonia and Slovenia, making an extraordinary range of materials available instantly to researchers and other participant-observers throughout the world. Thus a knowledgeable reader can stay very current on politics and ideological constructions in the former Yugoslavia without spending much time in the formerly Yugoslav republics.

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Long-distance fieldwork of this kind is simply a corollary to the “trans-national” conditions that anthropologists have noted in recent years (e.g., Appadurai 1991; Basch et al. 1994). If an Indian-born American anthro-pologist on a field trip to South India discovers that the temple priest he wishes to see is in Texas (Appadurai 1991: 201), it requires no stretching of the concept of fieldwork to suggest that the researcher could go to Texas to question the priest. Nor is this a new situation in anthropology. Lewis Henry Morgan, after all, gathered much of his kinship data for Systems of Consanguinity and Affinity by questioning “natives” – Japanese and various American Indians – who happened to be where Morgan was, Rochester, Albany, or New York.

The possibility of doing long-distance fieldwork, however, may be predicated on first having done substantial field research of the more traditional anthropological variety, involving long-term residence in the society in question, and certainly attainment of fluency in the relevant language(s). Fieldwork from afar also benefits enormously from shorter visits to the location of concern. Such has certainly been the case in the present project. Research on the links between nationalist ideologies and their constitutional expression in what was then Yugoslavia began in 1989, after I had already spent more than three of the preceding eight years working in the country on other projects. Since then, visits of four months in 1991, a few days in 1993, one of three weeks and another of two months in 1994, and ten days in 1995 have permitted focused interviewing to aug-ment analysis of texts alone.

The Multinational Federation and its Demise

Given the meanings of “Balkanization” in English (see Todorova 1994, and Bakić-Hayden and Hayden 1992) and the widespread assumption that the various Yugoslavs have always fought each other, it is necessary to sub-stantiate the assertion that the former Yugoslavia, if not exactly a peace-able kingdom, was a state in which ethnic or nationalist tensions did not dominate daily life. Accordingly, this section and the next part of this paper explore the community in fact of Yugoslavia by examining evidence of heterogeneity of the territories of the country and the intermingling, in all senses, of its component peoples.

The Yugoslavia that existed from 1945 until 1991, a multinational state in which no group comprised a majority, was premised on multicultural-ism. While it was composed of republics all but one of which did have a

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clear majority of the group for which it was named (e.g. Serbs in Serbia, Croats in Croatia), all of these republics also had sizeable populations of minorities. The republic of Bosnia and Herzegovina (B&H), the exception, had no majority group: in 1981, its population was composed of 39.5% Muslims, 32% Serbs, 18.4% Croats, 7.9% “Yugoslavs,” and 2.2% “others and unknown.” In the 1991 census, these proportions were, respectively, 43.7%, 31.4%, 17.3%, 5.5% and 2.1% (Petrović 1992: 4). At the other end of the spectrum, the most homogenous republic, Slovenia, had a population that was 90.5% Slovene in 1981 and 87.6% Slovene in 1991 (Petrović 1992: 9).

The political geography of the country reflected these territorial con-centrations. The Socialist Federal Republic of Yugoslavia (1945–1991/92) was a federation of six republics (Bosnia and Herzegovina, Croatia, Mace-donia, Montenegro, Serbia and Slovenia) and two “autonomous provinces” within the republic of Serbia (Vojvodina and Kosovo). Each republic or autonomous province was the area of greatest territorial concentration of one of the major national groups that comprised Yugoslavia. Thus in 1991, for example, 99.3% of the Slovenes in Yugoslavia lived in Slovenia while 70.6% of the Montenegrins lived in Montenegro.

In the free elections held in 1990, after the collapse of the League of Communists, the winning message in each republic was one of classic nationalism: Serbia for Serbs, Croatia for Croats, Slovenia for Slovenes, Macedonia for Macedonians. In B&H, the vote resembled an ethnic census, with Muslim, Serb and Croat nationalist parties accounting for about 80% of the total, in proportions only slightly less than those of each national group in the population of the republic; the most important party standing for a civil state of equal citizens, the Alliance of Reform Forces of Yugo-slavia of the federal prime minister, received only 5.6% of the vote – less than the 6% received by the “reformed” communists (see Hayden 1993b). While the strength of the nationalist victory was not large in any republic except Serbia,4 it was enough; the victorious politicians in Serbia, Slovenia and Croatia worked independently, and for their own reasons, to disable the federal government, attaining thereby the de facto state sovereignty referred to earlier (Woodward 1995). Thus each established a true nation-state, based on the sovereignty of the majority national group.

4 In Serbia, the “socialist” leader Slobodan Milošević, a communist until earlier in the year, accomplished a Ceauşescu-like transformation, turning an ostensibly communist party into a nationalist one. His lopsided victory in the 1990 elections reflected (apart from the fact that the elections were staged unfairly) his ability to appeal to both nationalist and communist members of the electorate.

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The separate nationalist political movements were all justified on the grounds of “self-determination.” However, this famous concept had a spe-cific meaning in Yugoslav politics and popular culture which had grim implications for any concept of a civil state of equal citizens. A reference in the first line of the 1974 Yugoslav Constitution to “the right of every nation to self-determination, including the right to secession”5 referred to the nations (narodi) of Yugoslavia, ethnically defined, not to the popula-tions or citizens of republics. While these “nations” were recognized as having their several republics, it was the “nations,” not the republics, that were described as having united to form the Yugoslav state, and the Yugo-slav republics, unlike those of the Soviet Union, did not have a right to secede.

This seemingly arcane distinction between “nation” and “republic” as the bearer of rights was actually of vital political importance. The essence of the separate nationalist political movements in Yugoslavia after 1989 was to assert the need for “nation,” ethnically defined, and “state” to coin-cide. Although this formulation was hardly new to European history, it did have sinister implications for minorities in states that suddenly defined themselves as the nation-state of the ethnic majority. By definition, anyone not of the majority ethno-nation could be a citizen only of second class. The key to this distinction lay in the concept of sovereignty. As nationalist parties came to power in the various Yugoslav republics after the elec-tions of 1990, they rewrote their several republican constitutions to justify the state on the sovereignty of the ethnically defined nation (narod), in which others may be citizens, but cannot expect to participate in control of the state.

The politics of nationalism in Yugoslavia in the late 1980s and early 1990s thus turned the territories of concentration of the various national groups into states in which the members of the majority nation were sov-ereign (see Hayden 1992a). The presumption of the politics was that the various Yugoslav peoples could not, in fact, live together, and that their common state had, therefore, to be divided. The electoral success of this message meant that the “Yugoslav idea” of a common state of the south Slavic peoples, which had been devised as a counter and rival to the sepa-rate national ideologies of each of them (see A. Djilas 1991) was defeated. To reverse Benedict Anderson’s evocative phrase (1983), the disintegration

5 Constitution of the Socialist Federal Republic of Yugoslavia, 1974, “Introductory Part, Basic Principles.”

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of Yugoslavia into its warring components in 1991/92 marked the failure of the imagination of a Yugoslav community. This failure of the imagination, however, had real and tragic consequences, for the Yugoslav community that could not be maintained, and thus has become unimaginable, even though it had actually existed in many parts of the country. Indeed, it is my argument that the spatial patterning of the war and its terrible ferocity are due to the fact that in some regions, the various Yugoslav peoples were not only coexisting but becoming increasingly intermingled. In a politi-cal situation premised on the incompatibility of their components, these mixed territories were not only anomalous, but threatening, since they served as living disproof of the nationalist ideologies. For this reason, the mixed regions could not be permitted to survive as such, but their popula-tions, which were mixing voluntarily, had to be separated militarily.

Heterogeneity, Mixed Marriages and “Yugoslavs”

Despite the maintenance of high levels of territorial concentration of the various national groups in their respective republics, the levels of eth-nonational heterogeneity throughout most of Yugoslavia were increasing. In Slovenia, for example, the concentration of the Slovene population increased between 1981 and 1991, with 97.7% of Slovenes residing in Slove-nia in 1981 and 99.3% in 1991 (Petrović 1992: 15). During this same ten-year period, however, the homogeneity of the population of Slovenia decreased, from being 90.5% Slovene in 1981 to 87.6% in 1991 (Petrović 1992: 9). Nor was Slovenia unusual in this regard. From 1953 until 1981, almost all of the territories of Yugoslavia became increasingly heterogeneous (Petrović 1987: 48); that is, in almost all republics and provinces, the percentage of the population that was made up by the majority national group declined. The exceptions were the two autonomous provinces in Serbia, Vojvodina and Kosovo. In Vojvodina the Serbian majority increased, due in part to the low birthrate among the next largest group, the Hungarians. In Kosovo the Albanian majority increased, due in part to the high Albanian birth-rate and the massive Serbian emigration from the province.6 Between 1981

6 B&H showed a rather different trend: the Serbian plurality recorded there in 1961 became a Muslim plurality in 1971, after the recognition of “Muslim” as a nationality in 1967 and the subsequent change in the declaration of nationality by many who had called themselves Serbs in 1961 (see Petrović 1987: 47 n. 19).

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and 1991, heterogeneity increased in Montenegro, Macedonia, Slovenia and Serbia but decreased in Croatia7 and B&H (Petrović 1992).

Accompanying the increasing heterogeneity of most of the republics was an increase in the rates of intermarriage between members of the dif-ferent national groups. Intermarriage is usually thought both to indicate increasing assimilation and to increase integration of social groups (Blau et al. 1982). From the early 1950s through the 1980s, “mixed” marriages increased in absolute numbers and in proportion of all marriages through-out most of Yugoslavia (Vreme, 11 March 1991: 31), but were particularly common among Serbs and Croats, and among Serbs and Muslims in B&H. Not surprisingly, the highest rates of intermarriage came in the places in which the populations lived most intermingled: the large cities, the prov-ince of Vojvodina, B&H, and the parts of Croatia that had large numbers of Serbs and Croats.8

Considering the frequency of the claim that Serbs and Croats suffer from “age-old hatred,” it is worth looking more closely at their increas-ingly close coexistence in Croatia after 1945, despite the terrible massacres of Serbs by the fascist “Independent State of Croatia” from 1941–45.9 The 1991 census showed that 12.2% of the population of Croatia were Serbs, primarily in Zagreb and otherwise concentrated in several parts of the republic, specifically Slavonija, Banija, Kordun and Lika. In Lika, the popu-lation was almost entirely Serb, and there were few intermarriages. Where Serbs and Croats lived together, however, they intermarried in large num-bers. In the town of Petrinja in Banija, for example, where the population was about equally divided between Serbs and Croats, about 25% of the

7 The increase in the percentage of Croats in the census in Croatia in 1991 was appar-ently the result of a shift by many who had identified themselves as “Yugoslavs” in 1981, to Croat. The number of “Yugoslavs” in Croatia declined by 72% between these two censes, from 8.2% of the population in 1981, to 2.2% in 1991 (Petrović 1992: 7).

8 I am not convinced by the recent argument by Botev and Wagner (1983) that inter-marriage did not increase in Yugoslavia, which considers aggregate data on the level of the republic, and thus is not sensitive to regional variations. Further, the symbolic value even of what they refer to as small numbers of intermarriages was great. Contrary to their rea-soning, Ivan Šiber of the University of Zagreb has documented a sharp decline of intermar-riages in Croatia since 1991, and interprets it as a sign of homogenization of the population (Feral Tribune 11 January 1994).

9 The extent of these massacres became a topic of hot debate in the late 1980s, with Croatian historians attempting to minimize the numbers (see Boban 1991, and its discus-sion in Hayden 1992c and Boban 1992; also Hayden 1993a). Croatian sensitivity on this topic can be seen in a ferocious attack, far in excess of normal standards of propriety in American scholarship, on Hayden’s comments on Boban by a second Croat writer (Knežević 1993a; and reply by Hayden, forthcoming).

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marriages were mixed, while in the major towns of Slavonija the percent-ages of mixed marriages climbed to 35% (the town of Pakrac [Borba, 30 September 1991: 11]).

Mixed marriages, of course, produce children of mixed background. Already by 1981, about one-third of the children born in Slavonijan towns such as Osijek were of mixed Serb-Croat background (Borba, 30 Septem-ber 1991: 11). B&H had the highest percentage of “mixed” children, 15.9% overall, again concentrated in the most mixed areas. Even the most concentrated republic, Slovenia, had large numbers of “mixed” or “for-eign” births: 7.9% issuing from mixed marriages, with another 19% from non-Slovene marriages, leaving only 73.1% of children issuing from “purely Slovene” marriages (Borba, 30 September 1991: 11).

Another indicator of heterogeneity can be found in the figures on those who identified themselves in the censes as “Yugoslavs” instead of as Serbs, Croats, Muslims or any other national group. Between the 1971 and 1981 censes the numbers of “Yugoslavs” increased dramatically, from 1.3% to 5.4% of the total population (see Burg and Berbaum 1989). The distribu-tion of these ethnic “Yugoslavs” was not even, however. They were found, in 1981, primarily in Belgrade and the Vojvodina in Serbia, in the major industrial centers in B&H, and in Istria and some larger centers in Croatia, as well as in the “mixed” regions of Croatia (Petrović 1987: 152–153; Danas 6 August 1991: 21). The age distribution of these Yugoslavs in 1981 indicated that it was a preferred identity among younger people, which led some researchers to conclude tentatively (and subject to the rise of precisely the type of nationalist politics that destroyed Yugoslavia in the late 1980s) that Yugoslavia was developing an increasing sense of community and that support for the multinational community was likely to increase, as would self-identification as Yugoslavs (Burg and Berbaum 1989).

It is not claimed here that national identity vanished; but it is clear that national identity was not a primary focus of most people’s concerns in the early 1980s. Ethnographers from mixed regions have reported consistently that while national differences were recognized, tensions were low in the 1980s until political events from outside of these regions overtook them (Olsen 1993 [Slavonija], Bringa 1993 [Bosnia], Jambrešić 1993 [Banija]).10

10 The transformation of the people of a mixed Muslim-Croat village from neighbors of different faiths into enemies of different nationalities is seen in Tone Bringa’s stun-ning ethnographic film, Bosnia: We Are All Neighbors, broadcast in America on PBS in May 1994.

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As it happened, of course, the rise of mutually hostile nationalisms led to a sharp decline in the percentage of Yugoslavs throughout the country, from 5.4% in 1981 to 3%, a drop of 41.25%. Again, the rates of decline were not even. The percentage of Yugoslavs dropped most dramatically in Croatia, from 8.2% to 2.2% (–72.32%), but also declined everywhere else: B&H by 26.5%, Serbia by 28.11%, Slovenia by 53.4% (all figures from Petrović 1992). The percentages of Yugoslavs remained highest, however, in the most mixed regions: B&H (5.5%) and the mixed areas of Croa-tia, where Yugoslavs had been most numerous in 1981 (Danas, 6 August 1991: 21).

It should be noted that the decline in the number of self-identified “Yugo-slavs” may often have represented a calculated decision that continuing to identify oneself as such for official purposes could be hazardous. At the time the census was taken, in April 1991, I was told by a number of people that they would prefer to continue to identify themselves as Yugoslavs but were afraid that doing so could cost them their jobs and perhaps real property in the chauvinist political climates that dominanted.11

Through the early 1980s, then, most parts of Yugoslavia showed increas-ing heterogeneity of populations, accompanied by increasing numbers and percentages of mixed marriages, increasing births of children of mixed parentage, and a rise in the number of those who identified themselves as “Yugoslavs” rather than any of the ethnonational categories of the several Yugoslav peoples. The distribution of these factors was not random, how-ever. Instead, they were all concentrated in the central part of the territory of Yugoslavia: the republic of B&H, the parts of Croatia bordering B&H and Vojvodina, Vojvodina itself, and Belgrade. In these parts of Yugoslavia, the idea that the Yugoslav peoples could not live peacefully together was empirical nonsense. It is perhaps because these regions constituted liv-ing disproof of the nationalist ideologies that became politically dominant after the late 1980s that the territories in which the intermingling of the populations was most complete have been the major theaters of the war.

11 Some respondents to the census registered a protest against the whole process by list-ing themselves as Eskimos, Bantus, American Indians, Citroens and refrigerators, among other fanciful categories. The deadly nature of the categories was brought home to partici-pants at a seminar on “Beyond Genocide” at John Jay College in New York in April 1992, when a human rights group from the town of Zenica in B&H used leftover blank copies of the 1991 census forms as the paper for a book of pictures of atrocities committed on the Muslims of B&H.

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Constitutionalizing Nationalism

Contrary to the official rhetoric of either the winners or of most western observers, the free elections of 1990 in Yugoslavia did not replace state socialism with democracy. Instead, the transition was from regimes dedi-cated to advancing the interests of that part of the population defined as “the working class and all working people” to regimes dedicated to advancing the interests of that part of the population defined as the eth-nonational majority. In this sense, the transition was from state social-ism to state chauvinism, and the “class enemy” of socialism was replaced by the enemy to the nation of the particular local chauvinism (Hayden 1992a). Not surprisingly, these national enemies were, primarily, the mem-bers of the largest minority in the polity, along with any members of the majority who might try to support rights for the minority.

Once in power, the victorious nationalists in each republic began to enact systems of constitutional nationalism, meaning constitutional and legal systems devised to ensure the dominance of the majority ethnona-tional group (see Hayden 1992a). Thus the constitution of Croatia (1990),12 for example, in its preamble gives a capsule history of the efforts of the Croat “nation” (narod) to establish “full state sovereignty”. After referring to the “inalienable . . . right of the Croat nation to self-determination and state sovereignty,” the Republic of Croatia is “established as the national state of the Croat nation and the state of the members of other nations and minorities that live within it.” In all of these passages, “Croat nation” (Hrvatski narod) has an ethnic connotation and excludes those not eth-nically Croat. This exclusionary definition of the bearer of sovereignty is reinforced by the emblems of the state, a flag and coat-of-arms bearing

12 In this section of this paper and the one that follows it, a great deal of emphasis is given to the analysis of Croatian constitutional and legal materials. Unfortunately, in the political climate surrounding the demise of the former Yugoslavia, the analysis of Croatian materials is frequently perceived by Croats as “anti-Croat” or even “pro-Serbian,” or as “disproportionate” if less space is devoted to the analysis of Serbian materials (see, e.g., Knežević 1993b and Hayden 1993c). Since this article deals primarily with constitutional and legal materials, however, it focuses on those documents that best exemplify the points under discussion, which are Croatian. Serbian materials are less revealing, not because the Serbs manifest the phenomena at issue any less than do Croats, but rather because the Serbian regime of Slobodan Milošević has put into place constitutional and legal structures that look progressive but that have little bearing on the actions of that authoritarian state (see also Hayden 1992a: 660). The criticism is in any event misguided, since it is based on the assumption that Croatian materials should be immune to analysis because of the actions of the Serbs, a proposition that is difficult to defend in regard to academic work.

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designs associated only with Croats (Art. 11) and specifying that the official language and script of Croatia are “the Croatian language and Latin script” (Art. 12), thus excluding the Serbian dialects and the Cyrillic alphabet customarily used to write them.13 Similar formulations of constitutional nationalism have arisen in other republics (see Hayden 1992a: 658–663).

The transition from state socialism to state chauvinism is seen in the formulations of state identity and purpose contained in the various repub-lican constitutions. Where the socialist constitutions had grounded the state on the dual sovereignty of “the working class and all working people” and “the nations and nationalities” of Yugoslavia, the collapse of social-ism left only one sovereign (Samardžić 1990: 31). Further, formation of the state of each of these sovereign “nations” was justified by the right of self-determination. This is seen in the preambles or prefatory parts to the various constitutions (emphasis added in each case):

Proceeding from . . . the inalienable and inextinguishable right to self-determination and state sovereignty of the Croatian nation, the Republic of Croatia is established as the national state of the Croatian nation and the state of members of other nations and minorities who are its citizens. [1990]

Resting upon the historical, cultural, spiritual and statehood heritage of the Macedonian nation and upon their centuries’ long struggle for national and social freedom, as well as for the creation of their own state . . . Macedonia is established as the national state of the Macedonian nation. . . . [1991]

On the basis of the historical right of the Montenegrin nation to its own state, established in centuries of struggle for freedom . . . the Parliament of Montenegro . . . enacts and proclaims the Constitution of the Republic of Montenegro. [1992]

Proceeding from the centuries-long struggle of the Serbian nation for inde-pendence . . . determined to establish a democratic state of the Serbian

13 To be sure, this same article contains a second clause that permits the use, “in par-ticular local jurisdictions,” of another language and script, “under conditions established by statute” (emphasis mine). Both limitations, however, are suspect. If local jurisdictional lines are gerrymandered so that no minority is anywhere a local majority, the constitu-tional provision becomes meaningless. Further, the subjugation of a supposed constitu-tional right to ordinary legislation vitiates the right. Thus, for example, a statute providing that one could use the “Serbian language in Cyrillic script” to write to the Minister for Religious Affairs, and only for that purpose, would be constitutional yet serve to deny, in a practical sense, the supposed “right.”

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nation . . . the citizens of Serbia enact the Constitution of the Republic of Serbia. [1990]

Proceeding from . . . the basic and lasting right of the Slovene nation to self-determination and from the historical fact that Slovenes have, over centu-ries of struggle for national liberation formed their national identity and established their own statehood, the Parliament of the Republic of Slovenia enacts the Constitution of the Republic of Slovenia. [1991]

Although not internationally recognized, the “Republic of Serbian Krajina,” the self-proclaimed Serbian state in Croatia, defines itself in its constitu-tion in much the same terms as the recognized successor states above:

Proceeding from the right of the Serbian nation to self-determination . . . and the centuries-long struggle for freedom . . ., determined to establish a dem-ocratic state of the Serbian nation on its own historical and ethnic space, in which the other citizens are guaranteed the realization of their national rights, a state based on the sovereignty belonging to the Serbian nation and other citizens in it . . . the Serbian nation of the Republic of Serbian Kra-jina . . . enacts the Constitution of the Republic of Serbian Krajina (1991).

Similarly, the “Republika Srpska,” the unrecognized Serbian state in Bosnia and Herzegovina:

Proceeding from the inalienable and nontransferable natural right of the Serbian nation to self-determination, self-organization and association, on the bases of which it freely establishes its own political status and secures its economic, social and cultural development. . . . To proclaim [the Ser-bian nation’s] determination to decide independently its own fate and to proclaim its firm will to establish its own sovereign and democratic state. . . . The Parliament of the Serbian nation in Bosnia and Herzegovina enacts the Constitution of the Republika Srpska. (1992)

In each of these preambles, the word “nation” (narod in all of the lan-guages involved) has an ethnic connotation; narod is a cognate to the verb roditi (to give birth). When preceded by the ethnic adjective (Croa-tian, Macedonian, Montenegrin, Serbian, Slovenian), the constructions exclude those not of the specified ethnicity. From the excerpts above, and particularly the phrases emphasized, it is clear that the various for-merly Yugoslav republics are considered to be manifestations of the right to self-determination – meaning the right to form its own state – of the

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majority, titular nation (narod), even when some expression is given to the equality of minorities. Again, a contrast can be made with the Preamble of the American Constitution, which provides simply that “We the People of the United States . . . do ordain and establish this Constitution.”14

Bosnia and Herzegovina, like the former Yugoslav federation itself, rep-resents the failure of an attempt to define the state in such a way as to recognize the sovereignty of all of its constituent groups without privileg-ing any of them. The last socialist constitution of B&H (1974) had defined the republic as

a socialist democratic state and a socialist self-management democratic community of working people and citizens, the nations [narodi] of Bosnia and Herzegovina – Muslims, Serbs Croats and members of other nations and nationalities living within it – based on the rule and self-management of the working class and all working people and on the sovereignty and equality of the nations of Bosnia and Herzegovina and the members of the other nations and nationalities that live within it (Art. 1).

As socialism collapsed, this definition was replaced by a constitutional amendment, so that the definition of the state in Art. 1 read: “The Social-ist Republic of Bosnia and Herzegovina is a democratic sovereign state of equal citizens, of the nations of Bosnia and Herzegovina – Muslims, Serbs and Croats and members of other nations and nationalities living within it.”15 Yet this definition did not satisfy the aspirations of Serbian and Croatian political figures in Bosnia and Herzegovina. In part because of problems of defining the state, no new constitution for B&H was ever agreed upon, and as Yugoslavia collapsed the Serb and Croat leaders in Bosnia proclaimed their own self-determining regions within the republic,

14 The U.S. Constitution as written (1787) did recognize a difference between “free per-sons” and “all other persons,” and excluding “Indians not taxed” (Art. I, § 2). Further, Amer-ican citizenship was limited by law to only “white persons” until after the Civil War, and even then, naturalization was permitted only to “white persons” and “Africans or persons of African descent” until 1952 (see Gettys 1934). A more appropriate contrast might there-fore be the Preamble to the Constitution of India (1950), consciously designed to imple-ment a democratic system in a polity fragmented on lines of caste, religion and language as well as social class: “We, the people of India, having solemnly resolved to constitute India into a sovereign, secular, democratic republic and to secure to all its citizens: Jus-tice . . . Liberty . . . Equality . . . Fraternity . . . do hereby adopt, enact and give to ourselves this constitution.”

15 Amendment LX to the Constitution of the Socialist Republic of Bosnia and Herzegov-ina, Službeni List Socijalističke Republike Bosne i Hercegovine 46 (no. 21, 31 July 1990): 499.

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which quickly became quasi-states, closely linked to Serbia and Croatia, respectively, and independent of the supposed government of Bosnia and Herzegovina in Sarajevo (see Shoup 1994). The war that followed effected the partition of B&H into regions that were meant to be, and are fast becoming, ethnically “pure” (see Hayden 1993b). This partition was inevi-table once Yugoslavia collapsed, for the self-determination of the Yugoslav nations (narodi), the political program that succeeded in 1990, meant that the Serbs and Croats of B&H would be drawn inevitably towards union with their ethnic confreres.16 Thus “self-determination” brought on the civil war that destroyed Bosnia.

The Constitution of the Federation of Bosnia and Herzegovina that was signed in Washington by Croats and Muslims in March 1994 and written with the help of American diplomats, is based on constitutional nation-alism, this time excluding Serbs from the sovereign peoples of Bosnia. While the Preamble states that “The peoples and citizens of Bosnia and Herzegovina, determined to establish full national equality, democratic relations, and the highest standard of human rights and freedoms, hereby create a Federation,” Article 1 then states that

Bosniacs and Croats, as constituent peoples (along with others) and citi-zens of the republic of Bosnia and Herzegovina, in the exercise of their sovereign rights, transform the internal structure of the territories with a majority of Bosniac and Croat population in the Republic of Bosnia and Herzegovina into a Federation. . . .17

The term “Bosniac,” an Anglicization of Bošnjak, has a purely Muslim ref-erent and does not equate with “Bosnian” (Bosanac), and is a term for eth-nic Muslims that avoids the religious load of Muslimani. In any event, this

16 The Vance-Owen plan, which ostensibly was aimed at preserving a single B&H, rec-ognized this fact of political life by opposing the division of B&H into only three ethni-cally-determined regions, saying that “a confederation formed of three such States would be inherently unstable, for at least two would surely forge immediate and stronger con-nections with neighboring states of the former Yugoslavia than they would with the other two units of Bosnia and Herzegovina” (International Conference on the former Yugoslavia, document STC/2/2, Oct. 27, 1992: 5). However, the Vance-Owen plan for dividing B&H into ten completely autonomous regions was unrealistic, since it amounted to proclaiming a house divided to be a condominium despite the demonstrated willingness of many of the residents to raze the edifice (see Hayden 1993b).

17 Constitution of the Federation of Bosnia and Herzegovina, draft of March 13, 1994, 5 P.M.; obtained from the Embassy of Croatia, Washington, D.C.; in English as one of three (with Croatian and “Bosnian”) original languages.

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Constitution excludes Serbs from the structure of the Federation, appor-tioning executive offices to Muslims/Bosniacs and Croats (IV.B.1. arts. 2–5) and ensuring veto power in the legislature to Muslim/Bosniac and Croat delegations, but not to others (IV.A.4, art. 18). The exclusion of Serbs became apparent immediately after the constitutional draft was signed in Washington, when a conference of Serbs in Sarajevo who were loyal to the idea of a multi-ethnic Bosnian state asked to be included in negotiations. They were ignored (New York Times 1 September 1994: A-15).

Citizenship: Denaturalization as Bureaucratic Ethnic Cleansing

“I slowly reached for my passport and handed it to a Slovenian police-man. . . . It was the old red Yugoslav passport, of course. All of a sudden, I became aware of the absurdity of our situation: I knew that, while he inspected my Yugoslav passport, he must still carry the very same one. There we were, citizens of one country falling apart and two countries-to-be, in front of a border that is not yet a proper border, with passports that are not good any more. . . . Walls are being erected throughout Europe, new, invisible walls that are much harder to demolish, and this border is one of them.” (Slavenka Drakulić [1993: 53–54], on her first crossing from independent Croatia into independent Slovenia, January 1992)

In popular speech and in many international documents, the world is composed of nations; but at the levels of law and politics, it is composed of states. Citizens of a state almost always have rights that non-citizens do not share, and this is certainly true in the formerly Yugoslavia republics. As these states attained independence their governments began to write the rules which would determine who can stay and who can not, who can work and who can not, who can vote and who can not, who will receive medical insurance or other benefits and who will not, who may own real property and who may not. In each case, citizens are entitled to the right or benefit and non-citizens are not, or are entitled to them only temporar-ily. Thus the question of citizenship in the successor states to the former Yugoslavia is one of utmost importance to the people living in them, since those who do not attain citizenship will be denied the rights essential for any kind of normal life.

It must be stressed that the question of citizenship for many of the people now forced to seek it was new. As noted earlier, the constitution of Yugoslavia had provided for a single, uniform Yugoslav citizenship, and also guaranteed the equality of Yugoslav citizens throughout the country.

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Suddenly, however, the citizenship of many residents in the newly inde-pendent states became questionable. New citizenship laws, written to privilege the members of the sovereign majority in each case, have worked to discriminate against residents not members of that group. In essence, the new citizenship regimes have simultaneously extended citizenship to members of the majority ethnonation who are not resident through easy naturalization for them, while denying citizenship to many residents who are not of the right group. This last process turns residents of a republic who had been equal citizens of federal Yugoslavia into foreigners, a pro-cess that we might call denaturalization. Neither of these phenomena is unique to the formerly Yugoslav republics, of course. The easy extension of citizenship to non-resident ethno-national-religious confreres is well known (e.g. Ireland and Israel), while the denial of citizenship to large numbers of people who until then might have been thought to have held it was the purpose of the 1981 British Nationality Act (see Gilroy 1987). In this last case, however, most of the “denaturalized” potential citizens were non-resident in Britain. The combination of easy naturalization of non-residents with the denaturalization of residents seems uncommon, but is manifested now in the successor states of the former Yugoslavia and the former Soviet Union (see Brubaker 1992a and 1993). The power of an imagined ethnic community (Anderson 1993) to break up actually existing communities in these post-communist settings is clear.

With the demise of Yugoslavia, the immediate practical question for many citizens of those erstwhile states was citizenship in one of the suc-cessor states. Here, laws and policies have varied. At the most inclusive end, the Slovenian Citizenship Act of 1991 offered citizenship to all citizens of another Yugoslav republic who had resided in Slovenia on the day that the plebiscite on independence was held, and most applicants have been granted citizenship (Mazowiecki 1993: 44). Even so, approximately 50,000 citizens of Yugoslavia who were counted in the 1991 census as residing in Slovenia have become foreigners there since the independence of that republic (Vreme, 8 March 1993: 33). Other states have been far less accom-modating. The Law on Croatian Citizenship of 1991, unlike the Slovenian law, made no special provision for citizens of other Yugoslav republics, instead rendering all of them “foreigners” who must seek naturalization. Further, Serbs in Croatia have complained that their requests for citizen-ship or for naturalization have been denied (see Mazowiecki 1992: 22; 1993: 26–28). Although the Croatian authorities have denied discriminat-ing against the Serbs, relatively large numbers of requests for citizenship

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have been rejected (Vreme, 8 March 1993: 34). Since the Law on Croatian Citizenship (art. 27 § 2) permits the authorities there to reject a citizen-ship application even though the applicant has met all the criteria if they “are of the opinion that there are reasons in the interest of the Republic of Croatia for refusing the request for the acquisition . . . of citizenship” and the same article (§ 3) provides that these authorities need not state their reasons for rejecting an application, the opportunity for discrimination, as complained of by the Serbs, certainly exists.18

The laws governing citizenship and naturalization are interesting because they are the mechanisms through which the imagination of an ethnonational community is made manifest and actualized. Specifically, these laws provide the grounds for the acquisition of membership in the community, thus revealing the principles thought to define it. Again, the Law on Croatian Citizenship (1991)19 is interesting. Article 8 of this law provides that

A foreign citizen who files a petition for acquiring Croatian citizenship shall acquire Croatian citizenship if he or she meets the following require-ments:

1.  [age requirement: 18]2.  [omitted]3.  that before the filing of the petition, he or she had a registered place of

residence for a period of not less than five years uninterrupted on the territory of the Republic of Croatia.

4.  that he or she is proficient in the Croatian language and Latin script.5.  that a conclusion can be drawn from his or her conduct that he or she

adheres to the laws and customs prevailing in the Republic of Croatia and that he or she accepts Croatian culture.

18 As is the case with the constitutional provisions (see above, Note 12), Serbia is less susceptible to analysis because that state, and the Federal Republic of Yugoslavia that con-tains it, is hardly a legal state at all. In the present instance, there is no new citizenship law in Serbia, and I am not aware of any analysis of Serbian practices in this regard. However, the bureaucratic requirements for obtaining citizenship in the new Yugoslavia (Vreme, 3 August 1992: 16–17) and the general pressure on minorities in that country (see Mazow-iecki 1992: 27–36; 1993: 32–42), indicate that the situation there is likely to be manipulated in order to discriminate against non-Serbs.

19 Zakon o hrvatskom državljanstvu, Narodne Novine 1991 # 53: 1466–1469; amended in Narodne Novine 1992 # 28: 659.

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Sections three and four of this article do not seem at first glance to be overly controversial, but both open wide opportunities for discriminatory application. The residency requirement depends on the interpretation of the qualification “uninterrupted” (neprekidno). More interesting is the language qualification. The dialects of what has until now been known as Serbo-Croatian or Croato-Serbian are myriad and intermixed, with some Serbian populations speaking dialects similar to those spoken by some Croats, and some Croat populations speaking dialects similar to those spo-ken by some Serbs (see Hammel 1993: 7–8). Serbs do prefer to use Cyrillic while Croats almost never use it. Thus the language criterion is problem-atical: is someone who speaks the Belgrade dialect proficient in the “Croa-tian language?” Who decides, and on what grounds? Would a “Serbian” dialect qualify if the speaker is an ethnic Croat but not otherwise?

Section five, however, is most revealing. What, exactly, does it mean to “accept Croatian culture,” and how does one conduct oneself to show such acceptance? Since the primary distinguishing feature of Croatian culture is Roman Catholicism, must one convert to that faith? If not that, what? This provision of the law takes a term that anthropologists have regarded as descriptive and analytical and makes it prescriptive; yet it remains empty of specific content.

It is this prescription of culture that turns it into an “object, a reified thing” (Kapferer 1988: 2; cf. Handler 1988: 14). The essentialism involved verges on racism when it sees reified culture as somehow surviving trans-plantation into another country where the chosen people are a minority.20 In the Croatian case, these implications become clear when the special rules for emigrants and their descendants (Art. 11) and for members of the Croatian nation (narod) who do not reside in Croatia (Art. 16) are consid-ered. In regard to both categories, Croatian citizenship can be acquired even though the applicant does not meet the requirements stated in Art. 8, §§ 1–4. However, these candidates must still meet the requirement of § 5. To an anthropologist, of course, the complete separation thus contem-plated between language and culture seems odd; yet it is restated twice, and thus seems not to have been a slip of the drafter’s pen. This provision provides a tool for extending citizenship only to ethnic Croats (e.g., the child of Croat émigrés from Croatia or of ethnic Croats from Serbia) while

20 Stolcke (1995) distinguishes “cultural fundamentalism” from racism, but she consid-ers only the political rhetoric surrounding immigration, not that linking émigrés with the homeland. It is this latter link that must envision culture as an attribute of birth, thus substance rather than simply code for conduct.

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denying it to others similarly situated (e.g., the child of Serb émigrés from Croatia). Taken together, the naturalization provisions of the Law on Cro-atian Citizenship may lead to situations in which, for example, a Muslim from Bosnia, long resident in Croatia and a native speaker of a Croatian dialect of what used to be called Serbo-Croatian, is denied citizenship, while an ethnic Croat from the United States, who has never been to Croatia and who doesn’t know the language, is granted Croatian citizen-ship. While the numbers of cases in Croatia are not known, it is inter-esting to note that the Slovenian provisions in regard to naturalization also privilege ethnic Slovenes; and that while 50,000 residents of Slovenia who were citizens of the former Yugoslavia have not acquired Slovenian citizenship, 25,000 ethnic Slovenes from outside of Slovenia have done so (Vreme, 8 March 1993: 34).21 Again the power of the imagined ethnic community to break up communities on the ground is apparent. The new citizenship laws provide the legal means to exclude from citizenship on ethnic grounds: in essence, bureaucratic ethnic cleansing.

Self-Determination, Homogenization and “Ethnic Cleansing”

The logic of “national self-determination” in Yugoslavia not only legiti-mates homogenization of the population, but has made that process so logical as to be irresistible. The course of the war has followed this logic of establishing the nation-state by eliminating minorities. What can be done bureaucratically by a majoritarian regime in a state with a numerically overwhelming majority, however, must be accomplished in other ways if the majority is not secure in its rule. These other ways have been military conquest, with subsequent expulsions of the unwanted population.

The Serbs, who took initially by far the greatest amount of territory, have also committed by far the largest number of violations of human rights (to put the matter politely).22 However, the Croatian offensives in 1993 to establish an ethnically pure Herceg-Bosna followed the same

21  Again it is necessary to state that the situation in regard to the determination of Serbian citizenship is no different (Mazowiecki 1993a: 26–27). Since Serbia has been an international pariah since 1992, probably few are clamoring to acquire its citizenship. Indeed, this author has met many Serbs who would like to acquire Croatian, Macedonian or even Bosnian citizenship for purely pragmatic reasons, to facilitate travel and emigra-tion. Most have found this impossible to do, however, even when their parents were from those republics.

22 See, e.g., Mazowiecki’s reports, cited earlier, as well as those of Helsinki Watch and Amnesty International.

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course in central Bosnia (Mazowiecki 1993: 8–10; 1994a: 6) and Mostar (Mazowiecki 1993a). “Population exchanges” have been part of this effort (Mazowiecki 1994a: 9–10).

The result of the war as of late 1994 was the more or less complete exchange of populations outside of Sarajevo, as shown by UNHCR esti-mates given in Balkan War Report (Dec. 1994–Jan. 1995: 5):

1991 Census Nov. 1994 Estimate

Croat-Muslim FederationSerbs 205,185Muslims & Croats 1,209,804

  36,0001,673,000

Serb-Held TerritoriesSerbs 928,857Muslims & Croats 838,190

1,169,000  73,000

Eastern EnclavesSerbs 20,000Muslims 80,000

None  115,000

Note that these figures do not include persons displaced within the so-called Croat-Muslim federation, although there were many such people.

During the spring and summer of 1995, this process of expelling popu-lations increased on the part of all parties. In May, a Croatian offensive against the Serb enclave of Western Slavonia led to the expulsion of virtu-ally all Serbs from that part of Croatia. In July, Serb forces took two of the Muslim “safe areas” in eastern Bosnia and expelled or killed all of their residents. In August, a Croatian offensive in the Krajina expelled close to 200,000 Serbs from Croatia, the single largest incidence of ethnic cleans-ing in the wars. Thus between June 1991 and August 1995, more than 85% of the Serb population of Croatia had been forced to leave the country (Vreme 28 August 1995: 8–11). In September, a joint Croat-Muslim offen-sive in western Bosnia expelled 100,000 Serbs from that region. As in Croa-tia, the summer of 1995 brought even greater waves of “ethnic cleansing” by the various forces. In July – as I have just mentioned – the Bosnian Serbs captured two Muslim “safe areas” in eastern Bosnia and expelled or killed the inhabitants. In September the Muslims, with the support of the Croatian army, began an offensive in western Bosnia that drove tens of thousands of Serbs out of west-central Bosnia, just north of a line running from Jajce to Bihac. Before the war began much of this region had been populated almost exclusively by Serbs.

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Note that despite protestations that the “international community” would never accept the ethnic partition of Bosnia, on September 8, 1995, the international community did precisely that. An agreement on basic principles for a constitution of Bosnia and Herzegovina, reached at Geneva under strong American pressure, recognized that Bosnia would be com-posed of two “entities,” the Croat-Muslim “federation” and the “Republika Srpska,” each under its own constitution (New York Times, September 9, 1995, at A-4). Since these constitutions define their respective states in ethnic terms, as seen above, this agreement under international sponsor-ship legitimates the ethnic partition of Bosnia. But of course, that par-tition had already been accomplished on the ground. The multi-ethnic Bosnia that was once actual, and for that reason prescriptive from the point of view of the international community, no longer exists, and hence can no longer be prescriptive.

From Optimism of the Intellect to Pessimism of the Will

The analysis of ethnic cleansing as a manifestation of the incompatibility of the objectified or reified cultures at the base of the several national-ist enterprises with the living cultures of the areas that have been the sites of the worst violence is at once intellectually reassuring and deeply disturbing. It is encouraging intellectually to know that anthropological frameworks of analysis can explain the violence that has destroyed what had been the ethnically mixed regions of the former Yugoslavia. A ratio-nalist might propose that since we know so much about the phenom-enon involved, perhaps we can prevent its recurrence in another place and time.

Yet another stream of rational thought induces pessimism. The circum-stance that induces ethnic cleansing is one of category violation. While it may be that contradictions are not resolved in myth and dream, in the realm of cultural politics, the drive to make the world conform to a vision of the way it supposedly should be is powerful. That the vision is flawed empirically is irrelevant. Indeed, once the vision receives general support, its empirical falsity simply adds ferocity to the drive to accomplish it.

A comparative look also gives further pause for thought. What we now call ethnic cleansing has been seen quite often in the twentieth century, above all in Europe, but not only there. A look at some examples shows that the process often has succeeded in creating a new reality. Thus Poland, for example, expelled six million Germans in 1945, while 3 million

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Jews were eliminated (one way or another) from Poland in the period 1939–46. The result has been the creation of one of the most ethnically pure states in Europe, which happy condition is generally seen as one of Poland’s advantages in attaining post-socialist “democracy.” Similarly, the expulsion of more than 3 million Germans from Czechoslovakia in 1945 has rendered the now independent Czech Republic ethnically pure and, like Poland, thus ready for democracy. Hungary, the other leading can-didate for the European Union and NATO, became ethnically pure after World War I through the separation from it of territories where Hungar-ians and others lived together. Thus Slovakia, Romania and Serbia have ethnic tensions with Hungarians, but Hungary has none in its own terri-tory. In the Yugoslav wars, Croatia’s expulsion of its Serbs was viewed by the American Ambassador to Croatia as a positive step in resolving the Yugoslav conflicts (OMRI Daily Report, 10 August 1995). “Ethnic cleansing” in Europe is thus a phenomenon that has proven successful both in rec-reating social reality and in gaining political acceptance.

Faced with this historical experience and with that of the Yugoslav wars, perhaps I may be excused if I adapt and reverse Gramsci’s famous dictum. We can now, as anthropologists, understand very well the pro-cesses that lead to ethnic cleansing; but we can also see how unlikely it is that, once started, they can be stopped. Optimism of the intellect here leads to pessimism of the will.

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PART II

THE POWER OF LABELING: DISCOURSES ON GENOCIDE, ETHNIC CLEANSING & POPULATION TRANSFERS

CHAPTER SIX

SCHINDLER’S FATE: GENOCIDE, ETHNIC CLEANSING AND POPULATION TRANSFERS

History repeats itself, first as tragedy, and then again as tragedy.

Louis de Bernières (1994: 359)

the totalitarian spirit, the spirit of propaganda . . . reduces (and teaches others to reduce) the life of a hated society to the simple listing of its crimes.

Milan Kundera (1995: 225)

In 1993, the film Schindler’s List provided what many commentators took to be simile and many others metaphor for the violence in Bosnia. The cinematic version of Thomas Keneally’s 1982 book on the holocaust of the Jews of Cracow seemed to emblematize the horror of the “ethnic cleans-ing” of Muslims from northern and eastern Bosnia in the summer of 1992 and thereafter, complete with wretched people in cattle cars and “concen-tration camps” with starving prisoners.

Virtually unremarked in the film, however, was the post-war fate of Oskar Schindler, although it does close at his grave in Israel. In his book, a novel that attempts “to avoid all fiction” (Keneally 1993:10), Keneally notes that Schindler was a German from the Sudetenland, but that “race, blood and soil meant little to the adolescent Oskar” (Keneally 1993: 34) and that in any event, the prewar Czechoslovakia “of Masaryk and Beneš” was “such a bosky, unravished little dumpling of a republic that the German-speakers took their minority stature with some grace, even if the Depres-sion and some minor governmental follies later put a certain strain on the relationship” (Keneally 1993: 32). Keneally (1993: 389) says that after the war, Schindler’s property in Poland and Czechoslovakia “had, of course, been confiscated by the Russians,” thus accounting for the man’s penni-lessness. Keneally also notes that Schindler spent the remainder of his life first in Argentina, then dividing his time between Frankfurt and Israel.

Missing from this account is an uncomfortable fact: Oskar Schindler, certified by the Israeli government as a Righteous Person, was never able to return home to Czechoslovakia, not because the Russians, “of course,” had confiscated his property, but because Beneš, President of the post-war

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resurrection of what had been such a “bosky, unravished little dump-ling of a republic” under his pre-war leadership, signed decrees in 1945 that expelled close to three million ethnic German citizens of the pre-war Czechoslovakia, depriving them of citizenship and confiscating their property (Kalvoda 1985: 123; Abrams 1995). Note that the Communists came to power in Czechoslovakia only in 1948.

Beneš’s decrees were based explicitly on the concept of collective guilt, and the action was approved by the great powers at Potsdam. Neither were the Sudetenland Germans the only ones effected: in 1945–46, close to ten million ethnic Germans were expelled from their homelands, six million from Poland, three million from Czechoslovakia, 500,000 from Yugoslavia, and others from Hungary, Romania and elsewhere. Günter Grass (1992), a German formerly from the former Danzig (now Gdansk) and thus in a position to know something about the matter, calls the present era “the century of expulsions.” The ejection of the ten million Germans from their homes in the aftermath of World War II certainly qualifies as one of the largest such episodes.

The fate of the Sudetenland Germans is still of interest to them and their descendants, and constitutes a serious irritant in relations between Germany and the Czech Republic (see New York Times, 9 February 1996: 1). Yet for most of the world, the matter is obscure, some curious revival of ancient claims. While Kafka had said that within each person in Prague there is a German, a Jew and a Czech, the elimination of the Jewish and German components is unremarkable in Prague now: of course the people of Prague are Czechs – it is, after all, the capital of the Czech republic, which, cleansed of Germans and Jews and freed from Slovaks, is now safe for democracy. And while the person Kafka might well have been elimi-nated in the 1940s on account of one or the other aspect of his identity, shrines to the writer Kafka, posthumously the Czech that he never was while alive, earn much from the tourist trade.

Even in 1945, there seems to have been some uneasiness over the expul-sion of the Germans. The Potsdam accord used the word “transfer” instead of “expulsion,” and utilization of the latter term remains controversial in Czech political and intellectual circles (Abrams 1995: 234 n. 1). It is inter-esting that Keneally does not avoid the fiction that it was the Russians (thus ethnicizing the other great European totalitarian movement of the present century) who confiscated Schindler’s property. Vaclav Havel, the former playwright now president of the Czech Republic, and undoubt-edly the political figure to emerge from the collapse of state socialism with greatest moral authority, has acknowledged that the Czechs should

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apologize to the Germans, but no more than that (see Nagengast 1996). As far as the dominant position of Czech public figures is concerned, there is nothing to apologize for; and certainly, no question of reparations for the property confiscated from the Germans. In a survey of Czech public opinion in early 1996, 86% of respondents said that they would not vote for political parties that favored making an apology to the Sudetenland Germans, while only 7% said that they would vote for such a party (OMRI Daily Report II, 9 April 1996).

Yet what occurred in 1945 was expulsion, and not some “orderly trans-fer,” except in the sense that Czechs, Poles and Yugoslavs ordered Germans to move with little or no notice, and brutalized those who resisted; tens of thousands of Germans were killed. Once the Germans were gone, the places were de-Germanized, transformed entirely so that as many traces of German culture were destroyed as possible (see, e.g., Mach 1993: 187–200). The intent was certainly “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (to quote Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide). The Sudetenland Germans were eliminated as an identifiable national group as such, as were other locally identified (and self-identified) groups of Germans elsewhere.

Whether expulsion is legally “genocide,” however, is another matter; and we should remember that the UN convention was sponsored by the same parties that had approved in Potsdam the destruction of these Germans as groups. Thus, legally, genocide is defined in the same arti-cle as specific acts committed with intent to destroy, in whole or in part, a national . . . group as such:

(a)  killing members of the group;(b)  causing serious bodily or mental harm to members of the group;(c)  deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part.

At this point, a number of legal arguments could be made, but we will leave them aside for the moment. What is more important is that almost no one would bother to make them. The brutal expulsion of ten million Germans, as Germans, from east-central Europe; the destruction of their culture; their elimination as groups as such, is, and was, of no interest to anyone not German. Indeed, I am quite aware that in raising the issue, I am doing something unseemly. The Germans, it is usually said, deserved it.

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It is just this sentiment that I wish to probe, however; or rather, it’s expression in discourses on and of violence. Under what circumstances is it no longer shocking, but desirable, to the “democratic west,” for persons in multiples of thousands, tens of thousands, or millions to be brutally expelled from their homelands, their property stolen, all traces of their culture expunged, their very identity as a group, as such, destroyed? Or, perhaps better, what rhetoric is used to justify such expulsions by the same parties that profess to be implacably against the crime of genocide?

My argument is that the crimes of the Holocaust provide a rhetorical structure that lends itself to the justification of the process that it pro-fesses to abhor: the destruction, in whole or in part, of national, ethnic or religious (terms that are themselves overlapping) groups as such. My ground of comparison will be the former Yugoslavia; not just Bosnia, cer-tainly, and also not simply the period since 1991, when the wars of the Yugoslav secessions and succession began.

It is necessary to state at the outset what it should not, in fact, be neces-sary to state: my analysis does not justify the violence it analyzes, even as it seeks to explain it. It would be comfortable to rest on Tzvetan Todorov’s distinction (1996: 137), in a very similar context, between anthropology, “which concerns itself with human dispositions rather than any particu-lar action,” and law or justice (which he seems to use interchangeably), which punish “only acts which have been committed, and nothing else,” and to privilege my anthropological intellectual persona over my legal one. Yet at the same time, we are caught in a trap of morality: the more actions are explainable, the less culpable they seem.

This moral problem is, perhaps, at the heart of any consideration of rhetorics of genocide. The word itself denotes an absolute evil which can only be condemned: justice trumps anthropology here. If justice is to be exemplary, however, it must look forward as well as backwards, and this task requires understanding. Todorov again (1996: 277): “it is understand-ing, not the refusal to understand, that makes it possible to prevent a rep-etition of the horror.” Similarly, Milan Kundera, in a passage discussing “evil’s scandalous beauty,” argues that a portrayal of evil cannot be read as endorsement of it, and that “without its beauty, the barbaric would remain incomprehensible” (Kundera 1995: 91; the immediate reference is to Adorno’s accusation that Stravinsky’s Le Sacre du printemps “does not identify with the victim, but rather with the destructive element”). There is, obviously, no beauty of any kind in the campaigns of ethnic cleansing in Yugoslavia, yet they do reveal a very strong logic (see Hayden 1996. At a time when a U.S. congressman, for example, calls this specific atrocity

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“irrational” because it is inherently evil (CSCE 1995: 1[comments of Rep. C. H. Smith]), it is even more important to consider seriously evil’s scan-dalous logic, since evil may be as rational as it is banal – indeed it would seem to need to be rational in order to be banal. It is necessary to explore horrors thoroughly in order to understand them, but doing so does not endorse the horror.

It should also be unnecessary, but again is not, to say that in looking at the use made of rhetorics derived from the Holocaust, I am not casting doubt on either the quantity or quality of that experience. Similarly, dis-tinguishing one set of horrors from another does not diminish the second. The first epigram at the head of this paper is not the usual tragedy-repeats-itself-as-farce, but rather tragedy repeating as tragedy. Understanding the historical repetition of patterns of tragedy may require differentiation from rhetorics whose applicability is so easy that it should, on reflection, be suspicious. To do so, however, does not imply that either historical moment is any less than tragic; quite the opposite, in fact. To fail to do so is to misrepresent the second tragedy, as not tragic at all.

What is needed is a rhetoric that is historically specific, if such an enter-prise is not oxymoronic. This is not to say that experiences of violence aimed at eliminating specific groups from particular territories are under-standable only in their own terms. To the contrary, I argue that the trag-edies we see in the 1990s in what was Yugoslavia are comparable in many ways to other events in some of the same territories fifty years earlier, and elsewhere in the world, if not to the Holocaust. The point instead is that by classifying recent Yugoslav events as “genocide,” the nature of the events themselves is actually obscured rather than explained. While the moral certainty of condemnation is always comfortable, when condemna-tion obstructs understanding it also obstructs attempts at prevention of the repetition of the horror.

Genocide and “Ethnic Cleansing”

The term “ethnic cleansing” seems to have originated with the wars in the former Yugoslavia; certainly it has been popularized by them. For many writers, “ethnic cleansing” has become conterminous with “geno-cide.” Thus, for example, a hearing before the Commission on Security and Cooperation in Europe of the U.S. Congress was entitled “Genocide in Bosnia – Herzegovina” (CSCE 1995), but it is clear from the opening statements of the congressional participants that the primary focus is

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ethnic cleansing, and the two terms are used almost interchangeably. The testimony of the primary professional giving witness, however, was more circumspect. Professor M. Cherif Bassiouni of the DePaul University Law School, who chaired a Commission of Experts charged by the UN Security Council with investigating war crimes in the former Yugoslavia, is very careful to say that while “ethnic cleansing” is certainly a crime against humanity, “[t]he question of genocide is a little more complicated” because of the definitional problem as to whether genocide requires an intent to exterminate an entire group, as in the Nazi campaign against the Jews. Professor Bassiouni says that the Commission of Experts “took a more progressive look at it, and said that genocide should be interpreted not in light of an entire group . . . but rather to look at it in terms of more specific contexts,” such as particular towns, since “then you can find an intent to eliminate in whole or in part a particular group within that context” (CSCE 1995: 12).

The Commission of Experts itself defined “ethnic cleansing” quite spe-cifically, as “rendering an area ethnically homogenous by using force or intimidation to remove from a given area persons of another ethnic or religious group” (Bassiouni 1994: 17, in CSCE 1995: 89). Coupled with the “progressive” interpretation of genocide enunciated by Professor Bassiouni, the legal problems of equating the two terms are resolved. But note that this is also a matter of determining morality; genocide is, unquestionably, the moral horror of the present century, so that any new process that can be classed as genocide deserves all of the moral, political and military con-demnation of the entire world community.

Yet the Expert Commission’s definition of ethnic cleansing, if taken seriously, means that genocide has been a tool for building a number of nation-states which are now honorable members of the world commu-nity. The problem may be seen in the commentary of one of the more vigorous condemners of “genocide” in Bosnia, William Safire of the New York Times, on the occasion of the joint visit to Sarajevo of Prime Minis-ters Benazir Bhutto of Pakistan and Tansu Ciller of Turkey. Safire praised them as leaders of two secular Muslim democracies (thus, of course, putting that last term to less than critical use). Yet Pakistan exists only because Muhamed Ali Jinnah in 1946–47 took exactly the same position as Radovan Karadžić in 1991–92, refusing inclusion as a minority in someone else’s promised democracy in favor of creating a “nation-state,” based on the right of self-determination, for India’s Muslim nation (note that I am not thereby equating Alija Izetbegović with Nehru, a point returned to below). The result was predictable: while in 1941 Hindus formed 13.4% of

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the population of what was to become West Pakistan, by 1961 they were only 1.5% of this population, reduced in absolute numbers from 3.8 mil-lion to 600 thousand (Herald Annual 1993: 88). Turkey, for its part, has shown in Cyprus that a NATO member can invade, partially occupy and partition a sovereign member state of the United Nations. The partition of Cyprus, of course, also involved ethnic cleansing, the removal of non-Turks from northern Cyprus and Turks from the rest of the place.

“Rendering an area ethnically homogenous by using force or intimida-tion to remove from a given area persons of another ethnic or religious group” seems, in fact, an essential element in the program of many state builders and national liberation movements. As Rogers Brubaker has noted (1995), the “unmixing of peoples” is a common concomitant of the collapse of empires. The pressure on ethnic Russians to leave most of the formerly Soviet republics is part of his analysis. The expulsion of Armenians from Azerbaijan is matched by the expulsion of Azeris from Armenia, including parts of what is supposedly still Azerbaijan, taken militarily by Armenians with no international criticism (indeed, the USA maintains economic sanctions on Azerbaijan, whose territory is occupied, rather than on the occupier, Armenia!). The creation of modern Turkey in the aftermath of the Ottoman Empire involved the elimination of the Armenians (the pro-cess that put the term “genocide” into the political vocabulary) and the expulsion of the Greeks; since the latter process was accomplished as a “population exchange” in which Turks were also forced from Greece, it is now largely forgotten, although it was brutal in its implementation. Also largely forgotten are the campaigns of ethnic cleansing in the so-called “Independent State of Croatia,” which included Bosnia and Herzegovina, in 1941–44, to which I return, below. For the moment, it is enough to say that nothing seen in Bosnia since 1992 surprises anyone familiar with the same process fifty years earlier, save that while in the 1990s the primary victims were Muslims, at the hands first of Serbs and then of Croats, the primary victims in the 1940s were Serbs, first at the hands of Croats, and secondarily of Muslims.

“Liberation movements” may be the most interesting, because of their invocation of the right to self-determination. In an international moral and political milieu in which only governments can do wrong, the result-ing population movements are usually if not ignored, then not the focus of much concern: the departure of Hindus from Indian Kashmir, of non-Tamils (including Tamil-speaking Muslims) from the putative Tamil Eelam in northern Sri Lanka, of non-Albanians from Kosovo and western Macedonia. Viewing most such departures as “voluntary” ameliorates the

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discomfort that would arise were matters to be perceived with greater clarity.

I do not mention these points to justify the events in Bosnia, but rather to raise the question of how those occurrences are to be distinguished from the events surrounding the creations of Pakistan and Turkey (both of which, ironically, have sent “peacekeepers” to Bosnia) as well as Greece, the expulsion of the Germans from Poland and the Czech lands, and the mutual forcible homogenizations engaged in by the forces of Armenia and Azerbaijan. Clearly, all of these meet the experts’ definition of ethnic cleansing, and also their “progressive” definition of genocide. Yet equally clearly, few commentators would wish to view any of these events as genocide, since they are not in fact comparable to the Holocaust. Geno-cide, after all, was exceptional. Bosnia may not be.

Well, so what? Isn’t the point of the genocide convention the preven-tion of just the kinds of acts found in Bosnia? And surely I am not arguing that such acts are acceptable simply because they have been common in the past?

Surely I am not; but I do wish to make clear, first, the rhetorical shifts that make some ethnic cleansings seem acceptable. Second, I wish thus to clear the space for exploring when, exactly, and despite all of our most moral rhetoric, we might expect “ethnic cleansing” to occur.

So let me be blunt: “genocide” draws its moral force, and conceptual horror, precisely because of the exceptional nature of the holocaust. Hitler wanted the Jews utterly exterminated, not simply driven from particular places. Ethnic cleansing, on the other hand, involves precisely such remov-als rather than extermination, and is not exceptional, but rather common in particular circumstances. Further, ethnic cleansing may be sponsored by the very powers that profess horror at genocide. In other words, eth-nic cleansing may lead to international rewards. The rhetorical device of labeling some ethnic cleansing “genocide,” and other ethnic cleansing a “population transfer,” constitutes the legitimation in the second case of what, to the victims, is surely a process of horror.

Let me say immediately that in taking this position I am not asserting that “final solutions” are so common in history as to be inevitable, the stance taken by Dr. Franjo Tudjman, now President of Croatia, in a book written before his election (Tudjman 1990: 166; quotation marks in origi-nal). Instead, my questions are twofold: first, when is “ethnic cleansing” so congruent with a political logic as to be irresistible, and when does this proj-ect gain international approval. The difference is essentially that between Hannah Arendt as political philosopher and Franjo Tudjman: where

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Tudjman sees genocide as existing “since time immemorial” (Tudjman 1990: 266), Arendt recognizes that it occurs only when particular philoso-phies of nation and state prevail, and looks at the conditions under which this happens (see Arendt 1966: 227–243 and 267–302). While I would not dream of arrogating any claim at all to Arendt’s mantle, I would hope that my effort is more closely related to hers than to Tudjman’s.

The Rationality of Ethnic Cleansing

In 1934, as the guarantees of the minority treaties of the Versailles settle-ment proved utterly illusory and as Hitler consolidated power in Ger-many, the secretary to the Minorities Committee of the League of Nations Union published a detailed analysis of the minority problem in Europe, and came to the conclusion that:

the real root of the problem lies in the philosophy of the national state as it is practiced today in central and eastern Europe . . . . It is true that the [minorities] Treaties provide in general terms for the equality of all nation-als of the contracting state before the law, and as regards enjoyment of civil and political rights, and for the same treatment and security in law and fact . . . . [However], since the whole conception of the national state implies a violation of the principle of equality to the detriment of the minorities, the guarantee of equality might be construed as involving the renunciation by the state of its national character . . . . A national state and national minorities are incompatibles. (Macartney 1934: 421–422, emphasis added).

The “philosophy of the national state” referred to by Macartney was that the state, a territory with a government, is an expression of the sover-eignty of a “nation,” a group that is in American terms defined ethnically (even religion being considered more a matter of heritage than neces-sarily of faith). He also noted that the new states after Versailles defined themselves constitutionally in national terms, each as the state of a single nation that forms the majority of its population (Macartney 1934: 208–210). Macartney noted that when a minority exists in such a state, only three solutions are possible: the revision of frontiers to match the distribution of populations; the elimination of the minorities by emigration “(perhaps through exchange of populations)”; or by altering the basis of the state, so that it is no longer a national state (Macartney 1034: 423). He also noted that a fourth possibility could be seen in “physical slaughter,” but that “although this most effective of remedies is still in vogue in certain coun-tries it shall not be discussed in this humane essay.”

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Unaware at the time of Macartney’s work, I analyzed the putatively democratic constitutions of the formerly Yugoslav republics in 1991–92 and proposed a model of constitutional nationalism, as “a constitutional and legal structure that privileges the members of one ethnically defined nation over other residents in a particular state” (Hayden 1992: 655). My analysis of the logic of such a state indicated that a regime that engaged in ethnic cleansing, the expulsion of a minority from its territory, could actually present itself to its own people, at least, as thereby maintaining both of the principles of international law that are usually said to conflict: self-determination of the nation and the inviolability of borders (Hayden 1992: 672). Viewed in this way, “ethnic cleansing” is a logical corollary of self-determination in situations in which the existence of a minority may be presented as potentially threatening to the national state of the major-ity (see Hayden, 1996). Physical slaughter enters the picture as an element of ethnic cleansing, since, after all, it usually takes a great deal of pressure to persuade people to leave their homes for homelands where they might, in fact, have never been.

Violence may be most required to break up populations that had long been living intermingled, such as those of Croatia and Bosnia in 1941 and 1991–92, Palestine in 1948, Punjab in 1947–48. One of the striking simi-larities in reports by Serbs in the “Independent State of Croatia” in 1941, victims on all sides in the Punjab in 1947 and Muslims in Bosnia in 1992 was that they had never expected to be attacked, since they lived peace-fully with their neighbors. Note that these were all campaigns primarily of expulsion or forced assimilation rather than outright extermination. The Holocaust remains a special case; pace Tudjman, “final solutions” are not so common in history.

What is clear, however, is that the logic of the nation-state precludes the existence of national minorities within it. The contradiction may be faced, and perhaps overcome, by eliminating the minorities through “expulsion, extermination or conversion,” or by redrawing borders and “exchang-ing” populations, probably largely through the same means required for “expulsion” in the first option. Redrawing borders is likely to be the choice of the discriminated-against minority, which will favor secession.

Of course, the logic that drives these various outcomes can be defeated if the majority does not assert the claim that it alone is sovereign in its own state. However, when a party has come to power precisely on such a claim, it is difficult to imagine a situation in which abandoning that posi-tion would be considered, or believed.

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Minority Rights as Oxymoron in Central Europe

It is precisely to counter such majoritarian problems that minority guar-antees are said to be so important to the Europe of today. Yet one may be doubtful, on historical grounds as well as in view of current practice. In so far as history goes, the dead-letter minority treaties of Versailles were not the first such efforts to fail. Similar disregard of minority guarantees occurred after the Congress of Berlin in 1878: although the Great Pow-ers made recognition of Serbia, Romania and Montenegro conditional on their protection of minorities, “recognition was not at any time withdrawn from any of the states in question on the score of their non-fulfillment of their minority obligations,” even though breaches of the obligations were frequent (see Macartney 1934: 166–171). On the other side of Ver-sailles temporally, in 1991 the European Community, soon to be the Euro-pean Union, explicitly conditioned recognition of republics seceding from Yugoslavia on their protection of minorities, but when confronted with the opinion of its own expert committee that Croatia did not meet the condition, while Macedonia did, the EC recognized Croatia and not Macedonia (Petruševska 1995). One might note that since then, eighty per cent of the Serbs in Croatia have left, with the largest departures being the expulsions following the Croatian military offensives of May and August–1995. Yet no European Union country withdrew its ambassador to protest this. Similarly, even though the EU had as late as February 1995 expressed unwillingness to recognize the Federal Republic of Yugoslavia until the rights of the Albanians of Kosovo were protected, most EU coun-tries recognized the FRY in April 1995 despite the lack of the supposedly prerequisite guarantees.

The chimerical quality of minority protections in Europe may be seen in another parallel between the post-Versailles period and the 1990s, which is the refusal of the European powers to be bound by the minor-ity protections that they would pretend to impose upon others. Thus the post-Versailles minority treaties were to be binding only on new states, which did not even include Germany. Similarly, in 1995, the OECD cov-enant on the rights of minorities was not signed by France, on the grounds that there are no minorities in the country, a position with which several million Arabs may beg to differ.

With her customary bluntness, Hannah Arendt viewed the minorities treaties of the Versailles settlement as saying “in plain language what until then had been only implied in the working systems of nation-states,

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namely, that only nationals could be citizens, only people of the same national origin could enjoy the full protection of legal institutions, that persons of different nationality needed some law of exception until or unless they were completely assimilated and divorced from their origin” (1966: 275). Or, Macartney might add, expelled. Or slaughtered.

When, however, is expulsion “ethnic cleansing,” thus “genocide” under the U.N. Expert Commission’s “progressive” view, and when is it not? The problem may be put in the context of the Croatian attack on the Krajina region, in August 1995. As Croatian forces “recaptured” regions that had, in fact, never been under the control of the Croatian government that seceded from Yugoslavia, the Serbs living in those regions were expelled. The Croatian army shelled civilian areas, then left open escape routes into Serb-controlled Bosnia for the Serb population to use (Silber and Little 1995: 350–351). Even then, the Croatian forces shelled some of the columns of refugees (see Owen 1995: 265). When all Serb resistance ended, Croa-tian police forces escorted Serbs to the border with Serbia. Once outside of Croatia, these Serbs, putatively citizens of Croatia, have been prohibited from returning by the brilliantly vicious circle of permitting return only to those who have documents issued by the Croatian government, and then not issuing such documents to Serbs outside of Croatia (New York Times, 17 Dec. 1995, at A-4). Peter Galbraith, however, American Ambassador to Croatia and the author of one of the first depictions of “ethnic cleans-ing” in Bosnia (Galbraith and Maynard 1992), said that the expulsion of the Serbs from the Krajina was not “ethnic cleansing,” because “ethnic cleansing is a practice supported by Belgrade and carried out by Bosnian and Croatian Serbs,” while the Croatian action could be a positive step in resolving the Yugoslav conflicts (OMRI Daily Report, 10 August 1995). As in 1945, apparently, expulsion is sometimes a legitimate tool for solving minorities problems.

The question is, however, what rhetoric is used to cover this unpleas-ant reality? In order to approach this question, it is useful to consider two cases that might seem at first glance quite disparate: the partitions of Punjab in 1947 and Bosnia from 1992 to 1996. On closer examination, what is disparate is mainly the rhetoric used to describe the removals of large segments of the populations in each case.

“Genocide” is in the Eye of the Beholder: Punjab, 1947/Bosnia, 1992

In 1947, the British acceded to the demands of the Muslim League for a separate state for India’s Muslim “nation,” and thus to the partitioning of

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Britain’s Indian empire into two states, India and Pakistan. In the western part of the still-united India, it was relatively easy to see that the farthest western regions, with large Muslim majorities, would become parts of Paki-stan, while the regions in the center of the country would remain as India. Between them, however, lay Punjab, with a third major community in the Sikhs, with the three communities living intermingled and the major lines of communication, transportation, irrigation and other infrastructure so intertwined that cleanly dividing any of it was impossible. Yet the Brit-ish accepted the position that if India would be divided, then so must be Punjab. I suspect that they recognized that Punjabi Muslims would in the main prefer to join Pakistan and Punjabi Hindus to join India, leaving the Sikhs with little choice: an independent state of their own was not pos-sible. With the agreement of the transitional governments-in-waiting of the new India and Pakistan, the British drew the border between them, announcing it only after the independence of the two countries had been proclaimed.

The result was one of the worst episodes of ethnic or communal vio-lence ever seen, as literally millions of people left their homes for their newly defined homelands, prompted on their way by murder, rape, assault and robbery. Yet for all of the violence of the “transfer of populations,” it was soon over. Since the border had been drawn beforehand, those trying to reach it knew when they would be safe, at least from the communal ter-ror. Further, since 1947, the vast majority of the refugees from that period were incorporated into India and Pakistan relatively quickly and relatively completely. Considering the importance of place of origin to many Indi-ans (even built into their names in some places), this incorporation is remarkable.

Note that while the traffic was two-way, the effect on the two countries was different. Although Pakistan was emptied of Hindus, many Muslims stayed in India, so that India still has one of the very largest Muslim popu-lations of any country. Whatever the complexities that guided the deci-sions of many Muslims to stay may have been, the promise of equality offered by Nehru, whose The Discovery of India (1945) is the basic text of Indian secular nationalism, may have been in part responsible. The Indian National Congress was a movement, then a party, that incorporated Mus-lims and other minorities, promoting a view of Indian secular nationhood that was reflected in the symbolic and constitutional structures of the state. Further, the Indian effort to build a democratic system was real, a process of constitutional drafting by a constituent assembly that lasted for a year and a half, with a constitutional structure emerging that not only promised equality but attempted to create institutions to bring it about

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(see Galanter 1982) – this at a time (1949–50) when the United States was a country that found segregation (the American form of apartheid) con-stitutionally acceptable and legally enacted.

Where Nehru wanted a democratic country of Indians, however, Jinnah wanted a nation-state for India’s Muslims. Whatever reference the Muslim League may have made to democracy, the model was essentially of the exclusionary nation-state type found in Europe in the 1930s, with all of the promise for protection of minorities that Macartney found there. With partition, India could remain the state of Muslim Indians, but Pakistan could not remain the state of non-Muslims, since to do so would have been contrary to its very justification for existence.

Let me not idealize India too much. Certainly Indian Muslims are in many ways subordinated to Indian Hindus, and of late, the hindutva campaign of the RSS, BJP, Shiv Sena and the like seems aimed at prov-ing Jinnah to have been right all along. Yet note that the militant Hindu movement must try to redefine the Indian nation in a way contrary to the Nehru/Gandhi image institutionalized in the structures of India since 1947 (see Varshney 1993).

Turning to what was Yugoslavia, in 1991 as the country was disinte-grating into nation-states for each of the Yugoslav peoples, the European Community was confronted with the problem of Bosnia. Like Punjab between the new states of India and Pakistan that were forming in 1947, Bosnia lay between Croatia and Serbia, with a third community, Muslims, no majority, all living intermingled, with the major lines of communica-tion, transportation, irrigation and other infrastructure so intertwined that cleanly dividing any of it was impossible. Yet it was clear to any-one who knew anything about the place that Bosnia in 1992 had as much chance of avoiding partition as Punjab in 1947. The Serbs and Croats had made no secret of their plans to divide Bosnia, and members of all three of the major groups in Bosnia, the Muslims, Serbs and Croats, had voted overwhelmingly for separate nationalist parties (one Muslim, one Serb, one Croat) in the only free elections in Bosnia, in 1990 (see Hayden 1993). And there were no Nehrus in Bosnia, but only Jinnahs. The Party of Demo-cratic Action of Alija Izetbegović was founded as a party of and for Mus-lims, and remains a party of and for Muslims, as nationalistic a party as its Serbian Democratic Party and the Croatian Democratic Union counter-parts. “Democratic” in these parties’ names is meant to indicate that the party manifests the will of the particular “nation” (Serb, Croat, Muslim), not an undifferentiated body of citizens.

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The initial response to the Yugoslav crisis of the Dutch government, holding the EC presidency in the second half of 1991, was in fact to con-sider redrawing republican borders in the process of creating successor states (see Owen 1995: 31–33). In an action that David Owen calls “incom-prehensible” (1995: 33), the other EC members ruled this out as “opening Pandora’s box” and as being “out of date” to draw borders on ethnic lines. Six months later, as EC recognition of republics within their current bor-ders grew increasingly likely, the head of the EC’s own mediation effort in Yugoslavia as well as the Secretary General of the United Nations advised the EC that to do so would likely cause Bosnia to explode (Owen 1995: 343–344). Yet the EC recognized first Slovenia and Croatia, then Bosnia. And, as predicted, Bosnia did explode.

In a situation in which a large portion of the population of the puta-tive Bosnian state rejected inclusion within it, recognition had to mean war for one of two reasons. If the “international community” were seri-ous in insisting that Bosnia be imposed on the large numbers of people, Serbs and Croats, who rejected it, the EC would have had to support a war of conquest on those people either to impose Bosnia on them or to expel them. On the other hand, having ruled out the partition of Bosnia, the international community left no choice to those who rejected it other than partition by military means, an option that both the Serbs and the Croats then took.

It does no good to argue, implausibly, that Bosnia was always a peace-able kingdom in which everyone got along (see, e.g., Donia and Fine 1993). The people living there were as aware of the real implications of suddenly being members of a minority in someone else’s state as were the people of the Punjab in 1947 (see Smajlović 1995). Saying that Sarajevo society was composed of the intertwining of Muslim, Serb and Croat cultures is as meaningful as Kafka’s comment on the inherent Czech, German and Jewish character of the people of Prague: quite true at the time, but con-trary to the logic of most states in modern Europe. In Bosnia in 1992, the practical logic of nation-state was far more real than the pieties of minor-ity rights, particularly as those pieties had been expressly ignored only months earlier in the recognition of Croatia.

So let me be blunt: the difference between Bosnia in 1992 and Punjab in 1947 was that in the Punjab, the agreement on territorial division before-hand meant that the horror was over relatively quickly. In Bosnia, how-ever, the pious insistence that partition would not happen when clearly it would meant that the lines were drawn, and redrawn, in blood; and

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the process took years longer than the partition of the Punjab. This is not to say that the partition of Bosnia could ever have been accomplished without brutality, but rather that its prolongation ensured that casualties would be higher than they would have been had partition been legiti-mated immediately (see Owen 1995).

Yet it is this external insistence that Bosnia exist despite the wishes of the elected representatives of two of its three constituent groups that seems to have driven the view that genocide took place there. “Ethnic cleansing” is only likely to be recognized as such, to say nothing of as geno-cide, when those making the charge view the territory being “cleansed” as belonging to those being driven out, a determination that may often have less to do with who, exactly, owns what, or how they came to be there, but with whose national-state the territory has been recognized as being. Thus, Hannah Arendt (1966: 276) says that after World War II, those mak-ing the peace “began to ‘repatriate’ nationalities as much as possible in an effort to unscramble ‘the belt of mixed populations.’ ” “Repatriation,” usually defined as “to send back to the country of birth, citizenship or alle-giance,” here provides the rhetorical cover for expelling people en masse from the country of their birth and citizenship, regardless of allegiance.

Thus an uncomfortable conclusion follows: the depiction of the expul-sion of a population depends on the political position of the party making it. Put another way, it seems likely that if the international community had agreed to the suggestion of the Dutch government in July 1991, and accepted the partition of Bosnia, the resulting mass expulsions of popula-tions would have been regarded as regrettable but “normal” consequences of the redefinition of the territorial states succeeding the former Yugosla-via, as in Punjab in 1947. When instead the EC and US chose to pretend that partition could not happen, this determination also meant that expulsions would be seen as pathology instead of normality, thus “genocide” instead of “population exchanges.”

“Genocide” and the Necessity of Collective Guilt

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 at the Hague is charged with trying individu-als for specific crimes, a stance developed at Nuremberg. Yet genocide must be a collective act, a policy and practice formed in the name of one collectivity and implemented against another. Thus even prosecutions of individuals presuppose the collective guilt of those whom those defen-

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dants claim to represent. Further, this charge of collective guilt is irrefut-able. While an individual defendant may be acquitted, the charge itself indicates that the larger guilt is assumed. After all, the crimes listed in the UN Convention on the Prevention of Genocide constitute genocide (as opposed to other, one hesitates to say “ordinary,” crimes) because they are part of a larger enterprise. To see this situation clearly, it is necessary only to imagine a prosecution for genocide of an individual acting completely alone who commits racially motivated killings and espouses a desire to exterminate the group to which his victims belong. While possibly per-mitted under a literal reading of the language of the convention, such a prosecution would seem absurd – no group is in danger of extermination from the actions of isolated individuals, abhorrent as they may be.

Thus an accusation of genocide in itself works to establish the collec-tive guilt of those in whose name it is said to have been carried out, even if only individuals are to be prosecuted. Such trials employ a rhetoric of adjudication when what is actually assumed is the stance of a tribunal, in the sense identified by Milan Kundera from the work of that classic expositor of central European legal and bureaucratic logic, Kafka. “The trial brought by the tribunal,” notes Kundera, “is always absolute, meaning that it does not concern an isolated act, a specific crime (theft, fraud, rape) but rather concerns the character of the accused in its entirety” (Kundera 1995: 227, emphasis in original). In regard to genocide, a defendant may deny that she or he committed specific acts charged, but no defendant is in a position to deny that genocide took place. But the individual is not the real defendant, in any event; rather, the defendant is the collective for whom the individual is said to have acted, which cannot be defended.

The problem with collective guilt, of course, is that many individuals in the condemned collective are not themselves guilty of anything. This uncomfortable fact is concealed, however, by what Kundera, again follow-ing Kafka, sees as the specific form of memory of the tribunal, a memory that is “colossal” but “which could be defined as the forgetting of everything not a crime” (Kundera 1995: 229, emphasis in original). It is this stance that is manifested by most accounts of the Germans of the Sudetenland and Poland, and the Serbs of Croatia and Bosnia.

Schindler’s Germans

Thomas Keneally (1993: 32) makes reference to Schindler and his family having in 1918 “found themselves citizens of the Czechoslovak republic.” Yet Germans such as the Schindlers didn’t simply “find themselves” in the

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new Czechoslovak, Polish and Yugoslav states: those states were imposed upon them, against the wishes of many of them. In 1918, the German deputies in Austria proclaimed an independent “German-Austrian state,” with the German deputies in Bohemia proclaiming themselves to consti-tute a “provisional diet” of a German Bohemia that was to be included in the German-Austrian state. These efforts were frustrated militarily: Czech troops seized control of Bohemia (see Kalvoda 1985: 111).

The incorporation of millions of Germans into Czechoslovakia and Poland was acknowledged by Woodrow Wilson’s secretary of state to have been a “striking example of the abandonment of the principle” of self-determination, as was the prohibition on German unification with Austria at Versailles (Lansing 1921: 98–99). While the justification for this was usu-ally put at ensuring the viability of the new states, those involved in drafting the treaties knew better. Charles Seymour, Chief of the Austro-Hungarian division of the American Peace Commission, noted that although Austria “had a right to expect” that territory would be allocated “in the spirit of the Fourteen Points” of Woodrow Wilson, this was not done (Seymour 1921: 90–91). Harold Nicolson argued (1965: 13) that “nineteen out of Presi-dent Wilson’s twenty-three ‘Terms of Peace’ were flagrantly violated in the Treaty of Versailles as finally drafted.” Clemenceau’s plans for dividing the German nation as one way of keeping Germany permanently weak employed the Wilsonian rhetoric of self-determination single-mindedly, against the Germans.

As noted above, for the Germans, as for other minorities, the protec-tion afforded by the “minorities treaties” was non-existent. The new Pol-ish state aimed at eliminating its German minority by forced assimilation or by forced emigration (Blanke 1993). Czechoslovakia, it is true, was the only one of the new states to sign the minorities treaties voluntarily, and had the best record of any in dealing with minorities. Even there, how-ever, policies on language use, for example, and other actions to exclude Germans from sharing power with Czechs and Slovaks left the Germans “smarting under a sense of grievance not felt by smaller minorities” (Macartney 1934: 415). After all, there were more Germans than Slovaks in Czechoslovakia, so the logic of proclaiming it a Czecho-Slovak state instead of a Czecho-German one could never have been convincing to the Germans. Even so, the majority of Germans in Czechoslovakia voted for parties that worked within the political and constitutional systems of Czechoslovakia, in elections in 1920, 1925 and 1929 (Kalvoda 1985: 115).

Did the Bohemian German “sense of grievance” justify Hitler? Of course not. But note that Hitler’s manipulation of the Germans of Czechoslovakia

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was based on real grievances. Note as well that the developments from 1935, when the German parties that had cooperated with the Czech estab-lishment were “decimated” in elections (with an apparently pre-Righteous Oskar Schindler joining the nationalist Sudetan German party and soon thereafter the National Socialist party), until the Munich conference in 1938, reflected the politics of other groups as well. At Munich, after all, not only was the Sudetenland awarded to Germany, but parts of Czechoslova-kia to Poland and Hungary. This last fact is usually forgotten in citations of Neville Chamberlain’s actions at Munich.

Should the Germans have been incorporated in 1918 into states defined as manifestations of the sovereignty of other peoples? How much of their rejection of such states was based on a realistic assessment of their posi-tion as second-class citizens at best? How much of the vehemence of Ger-man rejection of Czechoslovakia had its basis in the manifest hypocrisy of the Versailles settlement? How much easier is it to say that “the Germans deserved it” than to deal with such questions? To do so, however, not only justifies but requires ignoring the uncomfortable grievances of “the Ger-mans,” instead listing only their crimes: the tribunal rather than the trial.

Schindler’s Serbs

The Germans of the Sudetenland are perhaps the least sympathetic of group victims, both because of the use made of them by Hitler to justify his own campaigns of ethnic cleansing and because of the rather better treat-ment that they received under the Beneš government until 1938 than most minorities in Europe: second-class citizens, to be sure, but still citizens. Beneš, after all, had earned a personal reputation for promoting tolerance and democracy – here, perhaps, a European counterpart to Nehru.

Nothing similar could be said of the leader of Croatia in 1990–91, how-ever, Dr. Franjo Tudjman. Author of a book that sought to minimize the ethnic cleansing of Serbs in the “Independent State of Croatia” from 1941 to 1945 (as well as of the Holocaust), head of a political party in the 1990 elections-at-the-end-of communism whose slogan “We alone will decide the fate of our Croatia” left little doubt as to who was included in the “we,” publicly thanking God that his wife was neither a Jew nor a Serb, Dr. Tudjman was not a man to inspire confidence among Serbs in Croatia. Where Nehru’s The Discovery of India sought to create an Indian national ideology that was inclusive of all living in India, Tudjman’s Bespuća sought to show how no state in which different peoples are intermingled can long

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exist. Part of the tragedy of Yugoslavia in 1990–91 was that at the same time that Serb politicians in Belgrade were invoking the experience of the ethnic cleansing of World War II to turn Serbs in Croatia against the new Croatian regime, Tudjman seemed to do everything he could to lend support to the Serb propaganda.

Let us not suppose that Serbs were innocent in World War II, of course. They, too, engaged in ethnic cleansing, notably of Muslims in eastern Bos-nia (Dedijer and Miletić 1990). Yet the numbers are quite clear. The most reliable estimates of World War II deaths of the three Serbo-Croatian speaking groups in Yugoslavia (see Appendix) are (Bogosavljević 1995: xvi):

Minimum Maximum

Serbs 460,000 590,000Croats 190,000 270,000Muslims 70,000 95,000

In Bosnia, then part of the “Independent State of Croatia,” Serbs consti-tuted 72% of victims, Muslims 17%, Croats 4%; in Croatia, Serbs consti-tuted 50% of victims and Croats 37% (Bogosavljević 1995: xv).

I am aware that citing such statistics may appear as an attempt to jus-tify the actions of Serbs in Croatia in 1991 and Bosnia from 1992 through 1995, but this is not my point; I have stated elsewhere that these recent actions of Serbs have constituted “atrocities rivaling those of their earlier German, Croatian and Muslim tormentors” and that “[b]ecause of these atrocities, the legitimacy of the Serbian cause has been lost, and the Serb victims of the 1940s, once honored dead, will be forgotten” (Hayden 1995: 182). Note, however, that the total for Serb victims alone in this 1941–45 period was more than twice the number of the next largest group, and also more than twice the estimates for all victims on all sides in the wars in what was Yugoslavia since 1991. It is for this reason that Misha Glenny (1993) has called the rationale behind the wars in Yugoslavia “the revenger’s tragedy,” and Susan Woodward (1995) has noted that behind almost all of the vio-lence was fear. Their goal, like mine, was explanation, not justification.

The Comforting Morality of Amnesia

Most readers would say, however, that I am leaving something out. After all, surely, the Germans were expelled only after the horrors that they inflicted on the Czechs, Poles, Yugoslavs and the rest of Europe, while the

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Serbs were the ones who started ethnic cleansing in Croatia and in Bos-nia. These people deserved it, in other words. (I might add that very few Serbs will accept willingly a comparison with the Germans expelled from the Sudetenland, Silesia or the Vojvodina, since Germans committed ter-rible atrocities in the Serbia that they occupied from 1941–45 while coun-tenancing those committed by others against Serbs in the “Independent State of Croatia,” including Bosnia, at the same time; so this paper seems set to receive condemnation from all sides.)

Yet raising this concern simply returns to an acceptance of the concept of collective guilt that underlies any movement for mass expulsion. Did all ten million Germans “deserve” deportation in 1945? Did eighty per cent of the Serbs in Croatia in 1991 “deserve” to be expelled by the end of 1995, including the survivors of 1941–45 and their descendants? Did the Croa-tian government elected in 1990 “deserve” to be allowed to expel them?

It is far easier to avoid thinking about such questions, particularly when in doing so one can be seen to be supporting the morality of condemning ethnic cleansing. Yet if morality is aided by amnesia, how do we prevent history from repeating itself, the first time as tragedy, and then again as tragedy?

Appendix: War Victims in Yugoslavia, 1941–45

The number of people killed in Yugoslavia during the period 1941–45 has been a subject of debate since immediately after the war and particu-larly since 1990 (Hayden 1995, Denich 1994). In general, it would be safe to say that Serbs and the Yugoslav federal authorities reported higher fig-ures than Croatian writers. The figures put out immediately after the war by the Yugoslav government were that 1,700,000 were killed, a figure that almost all reputable studies later on view as too high (see Bogosavljević 1995, Djilas 1991: 126–128). The matter became particularly vexed in the 1980s as the Croatian historian Franjo Tudjman, later President of Croatia, published works arguing that very few were actually killed in the “Inde-pendent State of Croatia,” and of those many were not Serbs, while citing sources that said that Jews helped to staff camps like Jasenovac, the most notorious camp in the NDH (Tudjman 1990: 318–321). At the same time, intellectual figures in Serbia raised increasingly high figures on Serbs said to have been killed by the Croatian state (see Boban 1990 for a Croatian position on this tactic). Fortunately, by the late 1980s, Serb and Croat writ-ers had, independently of each other, provided comparable gross figures on casualties (1,014,000 [Serb figure] and 1,027,000 [Croat figure]) so that

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all but the far-right fringes of all sides should have had grounds for reason-able discussion. Unfortunately, the far right dominated this discourse in Serbia and won (Tudjman) electorally in Croatia.

The figures provided in the text are derived from an analysis that attempts to reach reliable figures from all of the published data and from a highly significant unpublished source, a “census” of war victims taken in 1962–64 by the Yugoslav government, but then suppressed as a state secret until the late 1980s (see Boban 1990: 587, Bogosavljević 1995). The material has again been treated as a state secret, and is not available to researchers (Bogosavljević 1995: xv).

In view of the politicization of these figures, it should be noted that the author cited in the main text, Srdjan Bogosavljević, was Director of the Federal Statistical Institute in Belgrade in the late 1980s, and thus had access to the materials. It should also be noted that Bogosavljević is a well-known member of the civil (as opposed to nationalist) opposi-tion in Serbia, and that the article cited was published in Republika, an independent magazine that is closely allied with the Civil Alliance in Bel-grade, the most well-known anti-war party in Serbia. The figures given by Bogosavljević are much lower than those usually cited by Serbs – which was precisely the point of his article.

References

Abrams, Bradley (1995). “Morality, Wisdom and Revision: The Czech Opposition of the 1970s and the Expulsion of the Sudeten Germans.” East European Politics and Societies 9: 234–255.

Arendt, Hannah (1966). The Origins of Totalitarianism (new edition). New York: Harcourt, Brace.

Bassiouni, M. Cherif (1994). Final Report of the United Nations Commission of Experts Estab-lished Pursuant to Security Council Resolution 780 (1992): Annex Summaries and Conclu-sions. UN Doc. S/1994/674/Add.2(Vol. I), 28 December 1994.

Bernières, Louis de (1994). Corelli’s Mandolin. New York: Vintage.Blanke, Richard (1993) Orphans of Versailles: The Germans in Western Poland, 1918–1939

Lexington, KY: University of Kentucky Press.Boban, Ljubo (1990) “Jasenovac and the Manipulation of History.” East European Politics

and Societies 4: 580–592.Bogosavljević, Srđan (1995) “Drugi Svetski Rat – Žrtve u Jugoslaviji.” Republika (Belgrade),

1–15 June 1995: xi–xvi.Brubaker, Rogers (1995) “Aftermaths of Empire and the Unmixing of Peoples: Historical

and Comparative Perspectives.” Ethnic and Racial Studies 18: 189–218.CSCE [Commission on Security and Cooperation in Europe] (1995) Genocide in Bosnia –

Herzegovina (Hearing before the CSCE, doc. no. CSCE 104-1-4). Washington, DC: U.S. Government Printing Office.

Dedijer, Vladimir and Antun Miletić (1990) Genocid nad Muslimanima, 1941–45. Sarajevo: Svjetlost.

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Denich, Bette (1994). “Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic Revival of Genocide.” American Ethnologist 21: 367–390.

Djilas, Aleksa (1991). The Contested Country: Yugoslav Unity and Communist Revolution, 1919–1953. Cambridge, MA: Harvard University Press.

Donia, Robert and John Fine (1994). Bosnia and Herzegovina: A Tradition Betrayed. New York: Columbia University Press.

Galanter, Marc (1982). Competing Equalities: Law and the Backward Classes in India. Berke-ley: University of California Press.

Galbraith, Peter and Michelle Maynard (1992). The Ethnic Cleansing of Bosnia – Herzegov-ina: A Staff Report to the Committee on Foreign Relations, United States Senate. Washing-ton, DC: U.S. Government Printing Office.

Glenny, Misha (1993). The Fall of Yugoslavia (2d ed.) New York: Penguin.Grass, Günter (1992). The Call of the Toad. New York: Harcourt, Brace, Jovanovich.Hayden, Robert M. (1992). “Constitutional Nationalism in the Formerly Yugoslav Repub-

lics.” Slavic Review 51: 654–673.—— (1993). “The Partition of Bosnia and Herzegovina, 1990–93.” RFE/RL Research Report

2(#22): 1–14 (28 May 1993).—— (1995). “Recounting the Dead: The Rediscovery and Redefinition of Wartime Mas-

sacres in Late- and Post-Communist Yugoslavia.” In Rubie S. Watson, ed., Memory, His-tory and Opposition under State Socialism, pp. 167–184. Santa Fe: School of American Research.

—— (1996). “Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia.” American Ethnologist, 23: 783–801.

Herald Annual (1993). “Special Report: Religious Minorities.” The Herald Annual (Karachi [?]), January 1993: 83–109.

Kalvoda, Josef (1985). “National Minorities in Czechoslovakia, 1919–1980,” in Stephan Horak, ed., Eastern European National Minorities 1919/1980: A Handbook. Littleton, CO: Libraries Unlimited.

Keneally, Thomas (1993 [1982]). Schindler’s List. New York: Simon and Schuster.Klíma, Ivan (1993). Waiting for the Dark, Waiting for the Light. New York: Picador USA.Kundera, Milan (1995). Testaments Betrayed. New York: Harper Collins.Lansing, Robert (1921). The Peace Negotiations: A Personal Narrative. Boston and New York:

Houghton Mifflin.Macartney, C. A. (1934). National States and National Minorities. London: Oxford University

Press.Mach, Zdzisław (1993). Symbols, Conflict and Identity: Essays in Political Anthropology.

Albany: State University of New York Press.Nagengast, Emil (1996). “Coming to Terms with a ‘European Identity’: The Sudeten Ger-

mans between Bonn and Prague.” German Politics 5: 81–100.Nicolson, Harold (1965). Peacemaking, 1919. New York: Grosset and Dunlap.Owen, David (1995). Balkan Odyssey. New York: Harcourt, Brace.Petruševska, Tatjana (1995). “International Recognition of Newly-Created States and

European Paradoxes on the Threshold of the Twentieth Century.” Balkan Forum 3 (#1): 245–267.

Seymour, Charles (1921). “The End of Empire: Remnants of Austria—Hungary.” Pp. 87–111 in Edward M. House, ed., What Really Happened at Versailles. New York: Scribner.

Smajlović, Ljiljana (1995). “From the Heart of the Heart of the Former Yugoslavia.” Wilson Quarterly, Summer 1995: 100–113.

Todorov, Tzvetan (1996). Facing the Extreme: Moral Life in the Concentration Camps. New York: Metropolitan/Henry Holt.

Tudjman, Franjo (1990). Bespuća povijesne zbiljnosti. Zagreb: Nakladni zavod Matice hrvatske.

Varshney, Ashutosh (1993). “Contested Meanings: India’s National Identity, Hindu Nation-alism and the Politics of Anxiety.” Daedalus 122 (#3): 227–261 (Summer 1993).

Woodward, Susan (1995). Balkan Tragedy. Washington, DC: Brookings Institute.

CHAPTER SEVEN

MASS KILLINGS AND IMAGES OF GENOCIDE IN BOSNIA, 1941–45 AND 1992–95

Bosnia and Herzegovina (hereafter, Bosnia) was the site of the first crimes in Europe after World War II to be pronounced judicially as genocide, the massacre of thousands of Bosniak (ethnic Muslim)1 males by the forces of the Bosnian Serb Army, in July 1995.2 This massacre came near the end of the 1992–95 conflict in which approximately 100,000 people were killed.3 All reasonable analyses show that the majority of the victims in the Bosnian conflict were Muslims, with Serb casualties the next largest in number; in a scientific paper, an employee of the Demographic Unit of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) provided figures that indicate that about 50% of a total of 102,000 dead were Muslims and 30% Serbs.4 However, while Serb casualties were overwhelmingly among military personnel, Muslim casualties were evenly split between military and civilian, so that the great majority of civilian casualties were Muslims. As discussed in detail below, publicizing the victimization of Muslims by Serbs was a primary public relations strategy of the Bosnian government and those who supported it, who invoked the term “genocide” early on in the war, using imagery that drew parallels between the events in Bosnia in the 1990s and the Holo-caust, a point discussed below. The 1990s genocide in Bosnia has become a cause célèbre internationally, as seen in the passage of Written Declaration

1 Until 1994, the term Muslim (Musliman) was used in general speech and in consti-tutional, legal and political documents in Bosnia and the rest of the former Yugoslavia to refer to peoples of Muslim heritage who speak Serbo-Croatian. In 1994, the term “Bosniak” (Bošnjak) was adopted for official use for these peoples (see Fran Markowitz, “Census and Sensibilities in Sarajevo,” Comparative Studies in Society and History 49: 40–73 (2007). Since “Muslim” was the term used throughout most of the war, I will use it in this paper. I am grateful for the comments on earlier versions of Xavier Bougarel, William Brustein, Tomis-lav Dulić, Ilya Prizel and Dan Stone.

2 Prosecutor v. Radisav Krstic, ICTY case no. Case No: IT-98-33-A, Appeals Chamber judgment of 19 April 2004, http://www.un.org/icty/krstic/Appeal/judgement/index.htm.

3 E. Tabeau and J. Bijak, ‘War-related Deaths in the 1992–1995 Armed Conflicts in Bos-nia and Herzegovina: A Critique of Previous Estimates and Recent Results,’ European Jour-nal of Population, 21 (2005), 187–215.

4 Ibid.

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no. 366 by the Parliamentary Assembly of the Council of Europe on 22 June 2005, and the international commemoration of the tenth anniversary of the Srebrenica massacre in July 2005.

Yet Bosnia was also the site of far greater mass killings in 1941–45, orga-nized and effected in ways that seem much more clearly to fit the term “genocide” than does the massacre in Srebrenica. From 1941–45, about 300,000 people were killed in Bosnia, about 65% of them Serbs, and 18% Muslims.5 However, invocation of this larger set of ethnically-targeted mass killings has been seen by many analysts, myself included, as part of the late 1980s and early 1990s nationalist political mobilization of Serbs in hostility to Croats and Muslims.6 At the same time, attempts to minimize the 1940s events by Croatian politicians, notably Dr. Franjo Tudjman in his transformation from nationalist anti-communist dissident to President of Croatia, were part of the Croatian nationalist project.7

The greater attention given to the lesser mass killings of the 1990s, com-pared with that given the larger ones of the 1940s, the insistence that the 1990s events constituted genocide, and the post-1995 insistence by many international actors and some Bosnian ones that those events be a main focus of Bosnian politics, provide an opportunity for examining the pro-cess through which the term “genocide” becomes attached to a situation of mass killing. This is not necessarily an encouraging exercise. In regard to Bosnia, the invocation of the term “genocide” is primarily a political process that, like the “invention of tradition,” creates essentialized images of a supposed past to serve the purposes of present-day political actors. The success of such a process depends not on the accuracy with which the

5 S. Bogosavljević, ‘The Unresolved Genocide,’ in The Road to War in Serbia, ed. N. Popov (New York and Budapest: Central European University Press, 2000), p. 155; T. Dulić, Utopias of Nation: Local Mass Killings in Bosnia and Herzegovina, 1941–42 (Uppsala: Uppsala Uni-versity Press, 2005), p. 314. The actual number of dead is undoubtedly substantially higher, as both Bogosavljević and Dulić worked from a 1964 census of victims of World War II that was acknowledged by its authors to encompass probably only 56%–58% of the total victims.

6 R. Hayden, ‘Recounting the Dead: The Rediscovery and Redefinition of Wartime Mas-sacres in Late- and Post-Communist Yugoslavia,’ in Memory, Opposition and History under State Socialism, ed. R. S. Watson (Santa Fe, NM: School of American Research Press, 1994), pp. 167–84; B. Denich, ‘Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic Revival of Genocide,’ American Ethnologist, 21 (1994), 367–90. The best accounts of the rise of Serbian nationalism in the 1980s are in Popov, ed., The Road to War in Serbia and J. Dragović-Soso, ‘Saviours of the Nation’: Serbia’s Intellectual Opposition and the Revival of Nationalism (Montreal: McGill-Queen’s University Press, 2002).

7 See R. Hayden, ‘Balancing Discussion of Jasenovac and the Manipulation of History,’ East European Politics and Societies, 6 (1992), 207–12.

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images reflect the events they supposedly represent, but rather with how well the images invoke an emotional reaction from the intended recipi-ents. This kind of argument is the inversion of the rationality that Max Weber invokes for science: “to state facts, to determine mathematical or logical relations or the internal structure of cultural values.”8 Instead, they are parts of political rhetoric; to Weber “not means of scientific analysis but means of canvassing votes and winning over others . . . such words are weapons.”9

This chapter analyzes the ways in which the term “genocide” has been invoked to label events of mass killing in the Balkans. In doing so, I raise questions about the effects of this labeling that many may find uncom-fortable, and I will probably be called a “genocide denier.” So let me be clear from the outset. My analysis begins with acknowledgment of the magnitude of the causalities: approximately 100,000 in the 1992–95 war, the majority of them Bosnian Muslims, and about 300,000 in the 1941–45 war, the majority of them Bosnian Serbs. In both conflicts, the casual-ties were inflicted in large part by organized attempts to remove the tar-geted populations from part of the territory in which they were living, and where their ancestors had also lived for centuries. The questions I raise are whether the application of the term “genocide” to these events aids or distorts our understanding of them, and may possibly have made address-ing the political situations in Bosnia since the late 1990s more difficult.

To presage the argument, the effort to fit the ethno-national mass kill-ings in the former Yugoslavia into a framework defined by the Holocaust has produced systematic distortions in the ways in which the conflict has been presented. These distortions have intellectual impact – much of the material written on “the Bosnian genocide” by those who became interested in Bosnia only after reading accounts of events there is inac-curate about these events and the motivations of the actors who commit-ted them, and thus is unreliable. But this intellectual failing has also had policy impact. Insofar as policy decisions are based on mistaken premises, they are unlikely to bring about the desired result.10

8 M. Weber, ‘Science as a Vocation,’ in From Max Weber, eds. H. Gerth and C. W. Mills (New York: Oxford University Press, 1946), p. 146.

9 Ibid., p. 145.10 If, of course, policy decisions actually are meant to bring about any result greater

than increasing the domestic popularity of the political actors making them – see M. Edel-man, Political Language: Words that Succeed and Policies that Fail (New York: Academic Press, 1977) for a discouraging analysis that argues the contrary position and is congruent with Bailey’s concept of the tactical uses of passion.

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One might respond that if the political rhetoric is being used to stop genocide, so what if the images are inaccurate? Yet the very question pre-supposes that what is taking place is in fact genocide, thus not only obvi-ating the need for close inquiry about whether that label is accurate but rendering the very question itself illegitimate, probably immoral.11 In this regard, the invocation of genocide may be “the tactical use of passion,” that “provokes feeling rather than thought . . . to provoke a direct connec-tion between feeling and action without the intervention of mind and its capacities for criticism.”12 It may also serve as a “God term,” the ultimate point of reference of a rhetorical framework, invoked to forestall further examination by all but heretics.13 But more troubling is the possibility that invoking what seems to be the supreme immorality of “genocide” becomes a reason for avoiding political solutions that might have ended the conflict, and even prevented greater massacres. In that case, rather then ending massacres, actions grounded on the emotional politics of the rhetoric of genocide may set the stage for wider slaughter.

In Bosnia specifically, decisions by international political actors, sup-posedly grounded in morality and informed by the rhetoric of genocide,

11 See, for example, T. Cushman and S. Meštrović, eds., This Time We Knew: Western Responses to Genocide in Bosnia (New York, NYU Press 1996), which castigates intellectuals who attempt to make a balanced analysis of events in Bosnia (p. 5): ‘Balance is a necessary quality of intellectual life, except when it comes . . . at the expense of confusing victims with aggressors, and the failure to recognize those who are the perpetrators of genocide and crimes against humanity.’ They further assert that ‘it is vitally important to let the facts speak for themselves, particularly where genocide is involved’ (p. 15). How one might determine ‘the facts’ without engaging in a balanced weighing of evidence is left unstated. Weber, of course, said (‘Science as a Vocation,’ p. 146) that “To let the facts speak for them-selves” is the most unfair way of putting over a political position.’

12 F. G. Bailey, The Tactical Uses of Passion: An Essay in Power, Reason and Reality (Ithaca, NY: Cornell University Press, 1983), p. 23.

13 Some well-known works about Bosnia (for example, those by David Rieff, Norman Cigar, Noel Malcom, Michael Ignatieff ) are essentially prosecutor’s briefs that ground their presentations about the putative genocide in Bosnia on the unrebuttable presump-tion that genocide in fact occurred. An outstanding example of this prosecutorial genre is J. Gow, The Serbian Project and Its Adversaries (London: Hurst & Company, 2003), which is explicitly not about the ‘the Yugoslav war as a whole’ but rather only Serbian strategies and activities, because, to Gow, this Serbian project was ‘the primary and defining element in the war’ and thus analysis of it is ‘essential both to exploring the true character of the war and to recognizing the central responsibility for what happened’ (p. 9). Purposefully ignoring the complexities of a historical process is an unusual intellectual strategy, and in this case a teleological one: all evidence is presumed to lead to the predetermined conclu-sion. This is a good strategy for making a prosecutor’s case, but it is unacceptable in social science, because evidence that might tend to disprove the predetermined conclusion is ignored. Such studies, political rhetoric in the Weberian sense mentioned above, and are not considered here.

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helped structure the local configuration of civilian populations and mili-tary forces in Srebrenica in 1995 that put Bosnian Serb forces in a position to engage in what was by far the worst crime of the Bosnian conflict, the massacre of thousands of Bosnian Muslim males in the last months of the war. That mass slaughter may have put, finally, some accuracy into the charges of “genocide” that had been made since the very start of the conflict, thus turning “genocide” from politically-inspired label to self-fulfilling prophecy.

Raising this problem, with specific reference to Srebrenica, will be extremely distasteful to many readers. It is not comfortable for me as an author. Yet avoiding an issue because it is uncomfortable is itself of dubi-ous morality. Tzvetan Todorov may be optimistic in arguing that “it is understanding, and not the refusal to understand, that makes it possible to prevent a repetition of the horror,” but surely he is correct to say that “the best way to allow the murders to happen again is to give up trying to understand them.”14

The Background: Competing National Identities in a Multi-National Region

Yugoslavia was a very logical idea. As the concept of the nation-state devel-oped in the nineteenth century and was used to inspire political actors to persuade various people to constitute themselves as Peoples and demand independence from the European empires, the idea of a single state for the speakers of the south Slavic languages made great sense. The dialects spoken in Bosnia, Croatia and Serbia were (and are) mutually intelligible, and Slovenian and Macedonian are closely related. While there were obvi-ous differences of religion, historical tradition and culture, the differences between Serbs, Croats and Bosnian Muslims were not greater than those between, say, Bavarians and Prussians. Thus the state recognized after World War I, composed by adding Slovenia, Croatia, Bosnia and Macedo-nia, plus part of what had been Hungary (Vojvodina) and the until-then independent Montenegro to the Serbia that emerged as one of the victori-ous allies, seemed politically viable.15 Yet the Yugoslav idea ( jug meaning

14 T. Todorov, Facing the Extreme: Moral Life in the Concentration Camps (New York: Metropolitan Books, 1996), p. 277.

15 The literature on the formation of Yugoslavia is huge; recommended recent works include D. Djokić, ed., Yugoslavism: Histories of a Failed Idea, 1918–1992 (London: Hurst,

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“south” in the various languages, thus Jugoslavija as the land of the South Slavs) was in constant competition with the separate nationalist move-ments of the South Slav peoples: Serbs, Croats, Slovenes, Macedonians, Montenegrins and later Bosnian Muslims. The first Yugoslavia (1919–41) was thus a tenuous, unstable state, almost from its birth, because the com-peting nationalisms of these separate (and separatist) nations could not easily be accommodated to the idea of a unified state under a Serbian king. Resistance to what was regarded as Serbian hegemony was particu-larly pronounced in Croatia.16

Whether the Kingdom of Yugoslavia would have survived the 1940s is unclear, but was rendered moot when Germany invaded the country in April 1941, conquered it in ten days, and created an “Independent State of Croatia” (hereafter NDH, after its Croatian acronym, for Nezavisna Država Hrvatska) that included Bosnia and Herzegovina, under the fas-cist Ustasha party, while giving parts of Serbia to its neighbors and placing the rest under occupation. What followed was a complex combination of war of resistance to Axis occupation (mainly by the Partisan army of the Communist Party of Yugoslavia under Tito and by Serbian royalist forces), attempts to establish an ethnically pure nation state (NDH, sup-ported by the Axis powers), and a Serbian royalist attempt to eliminate non-Serb populations from eastern Bosnia, in opposition both to the NDH and to Tito’s communists and in order to establish their own ethnically pure nation-state.17 Of all of these parties, only the communists had the goal of reconstituting a multi-ethnic Yugoslavia, and they won the war, perhaps in part for that very reason (they had also attracted the sup-port of the Allied Powers, in place of the Serbian royal regime and its Chetnik army).

Communist Yugoslavia (1945–90) also balanced national tensions, under the slogan of (compulsory) “brotherhood and unity,” before succumbing

2003) and G. Stokes, ‘Yugoslavism in the 1860s?’ and ‘The Role of the Yugoslav Committee in the Formation of Yugoslavia,’ both in Three Eras of Political Change in Eastern Europe, ed. G. Stokes (Oxford: Oxford University Press, 1997), pp. 83–92 and 93–108.

16 Standard references on the political development of the first Yugoslavia are I. Banac, The National Question in Yugoslavia: Origins, History and Politics (Ithaca, NY: Cornell Uni-versity Press, 1983), and A. Djilas, The Contested Country: Yugoslav Unity and Communist Revolution, 1919–1953 (Cambridge, MA: Harvard University Press, 1991).

17 See J. Tomasevich, War and Revolution in Yugoslavia, 1941–1945: Occupation and Col-laboration. (Stanford, CA: Stanford University Press, 2001); Djilas, The Contested Country; Dulić, Utopias of Nation; and M. Djilas, Wartime (New York: Harcourt, Brace 1981).

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to them with the end of communism in Europe.18 What was striking by the end of the 1980s was that with the end of communism, no political party was able to mobilize successfully on a platform of Yugoslavia as a civil society of equal citizens; what won instead, in each republic, was separate (and separatist) nationalism: Slovenia as the state of the sover-eign Slovene nation, Croatia as that of the sovereign Croat nation, etc. I have elsewhere called this formulation “constitutional nationalism” since the sovereignty of the majority nation (ethnically defined) over all other citizens of the state is enshrined in the constitutions.19 Demands for the sovereign state of each constituent nation of Yugoslavia was incompatible with the existence of the federation, which thereby collapsed, and led to war in portions of the former country in which newly disfavored minori-ties rejected inclusion in the state premised on hostility towards them.

What is striking about the demise of both Yugoslavias is that intense ethno-national conflict followed. But this conflict is a corollary of the logic of constitutional nationalism which is openly hostile to minorities and thus also tends to produce resistance from them.20 In both cases, 1941–45 and 1992–95, the demise of the larger state that was premised on the equality and fraternity of the Yugoslav peoples (and willing to sacrifice lib-erty to maintain the other two) led immediately to brutal conflicts in the most ethnically mixed regions, in efforts to establish the control of one group over the territory by expelling the members of the other group.21

18  The masterwork on Tito’s Yugoslavia is D. Rusinow, The Yugoslav Experiment, 1948–1974 (Berkeley, CA: University of California Press, 1977). The demise of Yugoslavia is well analyzed in S. Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War (Washington, DC: Brookings Institution 1995); see also the Central Intelligence Agencies unclassified Balkan Battlegrounds, 2 vols. (Washington, DC: Central Intelligence Agency, 2002, 2003), and R. Hayden, Blueprints for a House Divided: The Constitutional Logic of the Yugoslav Conflicts (Ann Arbor, MI: University of Michigan Press, 1999). A good journalis-tic account is L. Silber and A. Little, Yugoslavia: Death of a Nation (New York: TV Books, distributed by Penguin USA, 1995); however, the television series that the Silber and Little book accompanies is less reliable. The literature on the last few years of Yugoslavia and the wars that followed is otherwise too vast to survey here.

19  Hayden, Blueprints for a House Divided; also R. Hayden, ‘Constitutional Nationalism in the Formerly Yugoslav Republics,’ Slavic Review, 51 (1992), 654–73.

20 R. Hayden, ‘Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia,’ American Ethnologist, 23 (1996), 783–801.

21  In many places, the violence of the 1990s was locally viewed as a continuation of the violence of the 1940s, including Srebrenica; see C. Sudetic, Blood and Vengeance (New York: Penguin books, 1998) and G. Duijzings, ‘History and Reminders in East Bos-nia,’ Appendix IV to Nederlands Instituut voor Oorlogsdocumentatie NIOD), Srebrenica: A ‘Safe’ Area, http://www.srebrenica.nl/en/a_index.htm. A similar point is made by Mart Bax for Medjugorjje; see M. Bax, Medjugorje: Religion, Politics and Violence in Rural Bosnia

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The Brutal Breakdown of Coexistence: Numbers of Casualties

Since the numbers of victims of the mass killings of both decades have been manipulated heavily for political purposes, it is necessary to begin with a brief report of the findings of studies by highly qualified statis-ticians not in thrall to any of the nationalist parties in the ex-Yugoslav conflicts.22

1941–45: in the mid-1980s, two serious studies, one by a Serb and one by a Croat, found that slightly over 1,000,000 people had been killed dur-ing the war period in Yugoslavia. After a discussion of these studies and consideration of a major data source not available to these writers in the 1980s, Srdjan Bogosavljević derived minimum and maximum figures: 896,000 and 1,210,000, respectively.23 Using results of a 1964 registration of war victims, he calculated that about 58% of these victims were Serbs, 14% Croats and 5.4% Muslims. Of all killed in Bosnia, 72% were Serbs, 16.7% Muslims, 6% Jews, and 4.1% Croats.24

Tomislav Dulić provides a much more detailed study, drawing on data sources not available to Bogosavljević. In Croatia and Bosnia-Herzegovina (the NDH), he finds that at a minimum, 76.5% of the Jews living there in 1941 had been killed by 1945, between 15.9–20% of the Serbs, 10% of the Muslims, and 5–6% of the Croats.25 His estimate of the deaths in Bosnia-Herzegovina in the period is 292,000–308,000, of whom Serbs were 216,000–229,000, Muslims 50,000–53,000, Croats 12,500, Jews 10,500.26

(Amsterdam: VU Uitgeverij, 1995); see also Hayden ‘Recounting the Dead,’ and Denich, ‘Dismembering Yugoslavia.’

22 The 1941–45 sources are Bogosavljević, ‘The Unresolved Genocide,’ and Dulić, Utopias of Nation; those for 1992–95 are E. Tabeau and J. Bijak, ‘War-related Deaths in the 1992–1995 Armed Conflicts’ and the as yet unpublished findings of the Istraživaćko dokumentacioni centar of Sarajevo (http://www.idc.org.ba) as reported by its President, Mirsad Tokača, in media interviews. These 1992–95 studies were supported by the Office of the Prosector of the ICTY (Tabeu & Bijak) and the embassies of NATO countries, especially Norway (IDC), so the fact that their findings are contrary to the rhetoric of the war period serves to give them greater credibility. The 1941–45 period studies were self-funded (Bogosavljević) and funded from Swedish academic sources (Dulić).

23 Bogosavljević, ‘The Unresolved Genocide,’ p. 15724 Ibid., p. 155.25 Dulić, Utopias of Nation, p. 317. In an email on 1 March 2006, Dulić informed me that

he has recalculated Žerjavić’s figures and slightly lowered the upper range of percentage of Serbs killed, to 19%; see T. Dulić, ‘Mass Killing in the Independent State of Croatia, 1941–45: A Case for Comparative Research,’ unpublished ms.

26 Dulić, Utopias of Nation, p. 321.

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However, flaws in the data sets make it likely that Croats were severely undercounted and should be perhaps as high as 45,000.27

1992–95: Ewa Tabeau and Jakub Bijak drew on a variety of sources to arrive at an estimated total figure of war-related casualties in Bosnia-Herzegovina, 1992–95, of 102,622. Of known casualties (as opposed to esti-mates), 68.6% were Muslims, 18.8% Serbs, 8.3% Croats. Of these 47,360 were estimated to be military casualties, and 55,261 civilian. However, they noted that their figures were least complete and reliable from the Republika Srpska.

Mirsad Tokača’s centre responded to the initial release of the Tabeau and Bijak findings in an interview in the main Sarajevo daily, Oslobodjenje, that was headlined “The total number of victims in B&H was less than 150,000!”28 In a Reuters interview the next day, Tokača said that “we can now say with almost absolute certainty that the number is going to be more than 100,000 but definitely less than 150,000.”29 As the project has neared completion, Tokača has revised the total numbers downwards: in December 2005 the BBC carried a report that said that while the project would not be completed until March 2006, final figures would be about 102,000, and that of the data processed to date, 67.87% of the casualties were Bosnian Muslims, 25.81% Serbs and 5.39% Croats. Of the Muslim casualties, 50% were military, 50% civilian; a ratio that holds for the far fewer Croat casualties as well. Serb casualties were overwhelmingly mili-tary: 21,399, to 1,978 Serb civilians.30

Thus the two most recent studies of the 1992–95 casualties agree that total killed were about 102,000. They differ mainly in that the Tokača study shows more Serb military casualties and fewer Serb civilian casual-ties than does the Tabeau and Bijak study.

The total figures are summarized in Table 1, which may be compared with the machinations over numbers discussed in the section “numbers games,” below.

27 Ibid., p. 323.28 Oslobodjenje (9 December 2004).29 Report carried on Justwatch listserv, 10 December 2004.30 BBC Worldwide Monitoring, 17 December 2005; carried on Justwatch listserv,

17 December 2005. See also ‘Genocide is Not a Matter of Numbers,’ Bosnian Institute News & Analysis (www.bosnia.org.uk) 19 January 2006, an inteview with Tokača.

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Distortions 1: Competing for Victimhood in the Late 1980s

Communism failed as an ideology and basis for one-party government sooner in Yugoslavia than in the countries of the Warsaw Pact. In the early 1980s, analyses critical of Yugoslavia’s unique system of “socialist self-management” were openly published. Previously taboo subjects, such as the expulsion of 500,000 ethnic Germans from Vojvodina after World War II, the brutal imprisonment of those alleged to support the Soviet Union after Tito’s break with Stalin in 1948, and the mistreatment of those seen as bourgeois class enemies in 1945, were explored in magazines, novels, films and other popular sources.31 While there were attempts to develop political alternatives to state socialism based on the principles of a civil society of equal citizens,32 they lost in each republic to the classic position of European nationalism, that each nation (e.g., Serbs, Croats, Slovenes) had the right, and need, to be sovereign in its own separate state.33

31 See Hayden, ‘Recounting the Dead’; Dragović-Soso, ‘Saviours of the Nation’; Popov, ed., The Road to War in Serbia; A. Wachtel, Making a Nation, Breaking a Nation: Literature and Cultural Politics in Yugoslavia (Stanford, CA: Stanford University Press, 1998).

32 See, e.g., D. Tošić, ‘The Democratic Alternative,’ pp. 286–2297, and B. Horvat, ‘The Association for Yugoslav Democratic Initiative,’ pp. 298–303, both in Yugoslavism, ed. Djokić; Woodward, Balkan Tragedy.

33 Woodward, Balkan Tragedy; Hayden, ‘Constitutional Nationalism’; I. Vejvoda, ‘Yugo-slavia 1945–91: From Decentralization Without Democracy to Dissolution,’ pp. 9–27 in Yugoslavia and After, eds. I. Vejvoda and D. Dyker (London: Longman, 1996). The matter was more complicated in Bosnia, since the electorate de facto partitioned into separate Muslim, Serb and Croat electorates, each of which voted for a single nationalist party; see S. Burg and P. Shoup, The War in Bosnia and Herzegovina (New York: M. E. Sharpe, 1999), pp. 46–61; and X. Bougarel, Bosnie: Anatomie d’un conflit (Paris: Éditions La Découverte, 1996), revised edition published as K. Bugarel, Bosna: Anatomija Rata (Beograd: Fabrika

Table 1. Total Casualties by Ethno-National Group in Bosnia 1941–45 and 1992–95

Serbs Bosnian Muslims Croats

1941–45 216,000–229,000 50,000–53,000 12,500 [unrealistically low figure due to flaws in data set]

1992–95 24,216 63,687 2,619

Sources: 1941–45: T. Dulić, Utopias of Nation (Uppsala 2005): p. 321 and 323 (Croats); 1992–95: Published interviews with Mirsad Tokača, Istraživačko dokumentacioni centar, Sara-jevo, as of December 2005.

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The need to be sovereign, however, had to be justified, with arguments about why the given nation was damaged by its inclusion within Yugosla-via. Considering the importance of “brotherhood and unity,” direct appeals to nationalist antagonism against other Yugoslav peoples were not at first possible. Instead, the original arguments about the harmfulness of Yugo-slavia were economic in nature: inclusion within Yugoslavia damaged the economic interests of the given nation. However, these economic argu-ments were quickly transformed into positions claiming that the writer’s separate nation was threatened by other nations within Yugoslavia. This form of argumentation was common to the first direct challenges to the premise of Yugoslavia as unquestioned good for all Yugoslav peoples, the Memorandum of the Serbian Academy of Sciences and Arts (SANU, from its Serbian acronym), and the Slovenian National Program.

The SANU Memorandum quickly became notorious within Yugoslavia and, once the wars began, widely condemned outside of the country.34 Whether it was read or not is another matter. As Michael Mann has noted,35 the first part of it was a critique of the economic failings of Yugoslav self-management socialism and elements of the structure of the Yugoslav fed-eration. However, the second part depicts Serbs as victims of “genocide” on the grounds that they were being forced out of Kosovo – a tendentious claim and irresponsible rhetoric that shows, however, the political attrac-tiveness of the “genocide” label for claims that one’s own group has been victimized.

At the same time that the Serbian Memorandum was being drafted and leaked to the press, a “Slovenian National Programme” was published in Ljubljana.36 Similarly to the Serbian Memorandum, the Slovenian docu-ment claimed that inclusion within Yugoslavia was not only harmful to

Knjige Edicija Reč, 2004), ch. 1; Bougarel, ‘Bosnia and Herzegovina: State and Communi-tarianism,’ in Yugoslavia and After, eds. Vejvoda and Dyker.

34 The Memorandum was never actually adopted by the Serbian Academy; rather, a working document was ‘leaked,’ apparently in an effort to expose its nationalist tenden-cies, which portrayed Serbs as victims of the machinations of other nations throughout the twentieth century (see Woodward, Balkan Tragedy, p. 78). The Serbian Academy did finally issue the Memorandum in an attempt to defend itself; in K. Mihailović and V. Krestić, Memorandum of the Serbian Academy of Sciences and Arts: Answers to Criticisms (Belgrade: Serbian Academy of Sciences and Arts 1995). The Memorandum is discussed extensively in Dragović-Soso, ‘Saviours of the Nation,’ pp. 177–95.

35 M. Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge: Cam-bridge University Press, 2005), pp. 364–5.

36 See Dragović-Soso, ‘Saviours of the Nation,’ pp. 189–95; Woodward, Balkan Tragedy, p. 94.

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the economic interests of Slovenia, but even threatened the existence of the ethnic Slovene nation, in this case because of “dangerously high” immigration that threatened to turn Slovenia into a multiethnic republic.37 Unlike the authors of the Serbian Memorandum, the Slovene writers did not invoke the term genocide to cover the allegedly dire situation of their own nation, but their view of the nature of “nation” (narod) clearly was based on the standard European romantic ideology of a unity of “blood,” language and culture, which would be threatened by contamination if Slovenes had to share Slovenia with others.

Distortions 2: ‘The wish to be a Jew’: The Power of Jewish and Nazi Tropes in

Depicting Victimization38

Economic problems can presumably be addressed by changing economic and political systems; they are not, of themselves, threatening to the very existence of a “nation” perceived, in the manner of classical European Romanticism, as a biological and cultural entity. “Threatening the exis-tence” of the nation is, of course, a phrasing that is close to that of the definition of genocide, which concerns the “intent to destroy, in whole or in part” such a group. As noted, the Memorandum of the Serbian Academy of Sciences and Arts saw “genocide” in the pressures on Serbs to leave Kosovo in the 1980s, although few non-Serbs have accepted or would be likely to accept that labeling. The point was clearly to appropriate for Serbs the most terrible victimization known. The claim was thus not about acts of extermination so much as it was about the status of victim-ization, and “genocide” was invoked not as a description of the kinds of actions directed against Serbs but rather of their status as victims. In this rhetorical configuration, identification as supreme victim is crucial, and in the 1980s and 1990s in Yugoslavia, at various times Serbs, Kosovo Alba-nians, Croats and Bosnian Muslims all claimed to be the new Jews, thus the new victims of genocide. At the same time, in this rhetorical context there are no Jewish victims without Nazi perpetrators, so claiming victim

37 Dragović-Soso, ‘Saviours of the Nation,’ pp. 189–90. Other elements of Slovenian chau-vinism towards other Yugoslavs are discussed in M. Bakić-Hayden and R. Hayden, ‘Orien-talist Variations on the Theme “Balkans,” ’ Slavic Review, 50 (1992), 1–15.

38 The title of this subsection is borrowed from M. Živković, ‘The Wish to be a Jew: The power of the Jewish Trope in the Yougoslav [sic] Conflict,’ Cahiers de l’Urmis, 6 (March 2000), 69–84, and many of the ideas discussed in it are based on Živković’s work.

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status as the new Jews also meant imposing the status of the new Nazis on another national group.

Serb intellectuals, not themselves Jewish, were the first to assert the vic-timization of their own nation by claiming to be the new Jews. In 1985, the writer Vuk Drašković issued a “Letter to the Writers of Israel” that claimed that the Serbian subjugation to the Ottoman Empire had been like that of Israel to the Babylonians; that the exodus of Serbs from Ottoman ter-ritories was like the Jewish diaspora; and that the slaughter of both Serbs and Jews by fascists in World War II had completed the common identity as martyrs of Serbs and Jews.39 But others asserted the same claim to be the real Jews. Thus in a meeting in Slovenia held to support Kosovo Alba-nians said to be oppressed by Serbia, the Slovenian organizers distributed traditional Albanian men’s caps decorated with a Star of David, to mark the Albanians as victims and the Serbs as the new Nazis. Another Serbian writer then asserted that the Slovenes had forgotten that in the murders of World War II, “the kinship of Jews and Serbs has been sealed forever.”40 In the late 1980s, a “Serbian-Jewish Friendship Society” was organized, in an attempt to gain the support of Israel and thus, it was hoped, the United States; the Jewish Community of Serbia, however, played no part in these activities.41

When the wars began in 1991, some attempts were made to assert that Croats, rather than Serbs, were the victims of genocide.42 The equation of Croats with Jews, and Serbs with Nazis, was explicit: “how is it that so many . . . have managed not to see “the Nazis of this story” for what they are, and have hastened to embrace them as fellow Jews instead?”43 However, it was difficult for this effort to succeed, in large part because the regime of the NDH had not only been explicitly allied with Nazi Ger-many, but also because it had practiced extermination policies against Jews and Gypsies and those of mass murder against Serbs.44 This history was made relevant by Tudjman’s invocation of symbols associated with the NDH and the Ustasha in his political campaigns and in the newly

39 Ibid., p. 73.40 Matije Bečković, quoted and translated by Živković, ibid., p. 73.41  Ibid., pp. 73, 75.42 See I. Primoratz, ‘Israel and Genocide in Croatia,’ in Genocide After Emotion: The

Postemotional Balkan War, ed. S. G. Meštrović (London: Routledge, 1996), pp. 195–206.43 Ibid., p. 205.44 Dulić, Utopias of Nation.

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independent Croatia,45 and what have generally been interpreted as antisemitic passages in his best-known book, Bespuća povijesne zbiljnosti (1990), published in translation as Horrors of War, with the objectionable parts removed or changed. A leader of the Croatian Jewish community argued in 1991 that of all the occupied countries in World War II, it was only in Croatia that the quisling regime had independent authority over concentration camps,46 and that of the 40,000 Jews living in 1940 in what became the NDH, “the Ustaše killed 26,000 and paid the Germans to take care of 5,000 more in Auschwitz.”47 In 1997, Croatia issued a statement that “completely condemns Nazi crimes of the Holocaust and genocide over Jewish people in many European states, including Croatia,” as part of its establishment of relations with Israel.48

The best-known passages in Tudjman’s book internationally were those in which he seemed to question the total of 6,000,000 victims of the Holo-caust49 (a term, “Holokaust,” that he consistently puts into quotes), and his reference to a “long-term policy and strategy on the plan of a “final solution” of the Palestinian problem” at a time “in the middle of the 1980s, when world Jewry still had the need to recall their victims in the ‘holo-caust.’ ”50 Perhaps the most remarkable passages in Tudjman’s book were those that asserted that Jews actually controlled the internal management of the largest concentration camp in Croatia, Jasenovac, up until 1944 and that it was, therefore, Jews who had inflicted sufferings at Jasenovac on Roma and Serbs.51 As Tomislav Dulić has pointed out, the Ustasha admin-istration of Jasenovac followed the methods of the German camps and thus used inmates (kapos) as internal administrators; since Jews were the first prisoners brought to Jasenovac, and were also better educated than most Serbs or Roma, they dominated the internal administration in the first stages of the camp, and it was in any event standard practice in the

45 See S. Kinzer, ‘Pro-Nazi Legacy Lingers for Croatia,’ New York Times (31 October 1993), 6; C. Hedges, ‘Fascists Reborn as Croatia’s Founding Fathers,’ New York Times (12 April 1997), 3.

46 Romania, however, also controlled its own camps (Ilya Prizel, personal communica-tion, 14 February 2006).

47 ‘Antisemitizam: Jesu li Ustaše zaista bili džentlmeni?,’ Globus (23 August 1991), 14.48 ‘Croatia Apologizes to Jews for Nazi-Era Crimes,’ New York Times (23 August 1997),

A-6.49 F. Tudjman, Bespuća povijesne zbiljnosti: Rasprava o povjesti i filozofiji zlosilja. (Zagreb:

Naklodni zavod Matice hrvatske, 1990), pp. 156–8.50 Ibid., p. 160.51  Ibid., pp. 316–20.

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German camps for members of one nation to be the kapos for prisoners of other groups.52

The image problem that Tudjman’s book caused for Croatia can be seen in the favorable article on Bespuća in the Croatian version of the reader-edited on-line encyclopedia Wikipedia, which says that the book was translated “in a ‘cleansed’ version because of its supposedly murky sections which offended the sensibilities of the Jewish community.” The article then notes that Tudjman cited Israeli and Jewish historians who problematized the numbers of those killed in the Holocaust, saying that the number was closer to 4,000,000 than 6,000,000, and that because of this, “and because he opened up the uncomfortable theme of the Jewish kapos in the concentration camps (i.e. the “cooperation” between Jewish inmates with Nazi administrators . . .), and leaving aside the clumsiness of some of his formulations, Tudjman struck the ‘sacred cow’ of the new Jewish national mythology . . . .”53 If Tudjman’s book still has this reputa-tion in Croatia, it is easy to see why it was hard for Croatia under his lead-ership to dodge the Nazi label long enough to pin it on other groups.

If Croats could not easily claim to be the new Jews victimized by Serb Nazis, however, Bosnian Muslims and their supporters were able to make effective use of both parts of this polarized pair of tropes. In part their success in this effort was indeed due to the Muslims having been brutally expelled from large parts of Bosnia by the much better armed and orga-nized Bosnian Serbs, and the disproportionately high casualties suffered by Bosnia’s Muslims compared to other groups, especially at the start of the war. However, the success of the Nazi trope for Serbs and that of Holo-caust victim for Muslims also benefited from the temporal coincidence of the start of the Bosnia conflict with the opening of the United States Holocaust Memorial Museum and the critical and commercial success of Steven Spielberg’s film Schindler’s List, which brought these tropes into the centre of public discourse.

The assertion of a parallel with the Holocaust was explicit: “from Auschwitz to Bosnia.”54 Making this case involved the frequent and explicit

52 Dulić, Utopias of Nation, p. 260. Dulić refutes other arguments by Tudjman about the supposed role of Jews in Jasenovac on pp. 261–3.

53 Wikipedia article URL: http://hr.wikipedia.org/wiki/Bespu%C4%87a_povijesne_zbiljnosti, checked 27 January 2006.

54 This parallel is explicitly drawn, with references to other uses of it at the time, by T. Cushman and S. Meštrović in the “Introduction” to This Time We Knew, pp. 6–13; indeed, this volume is exemplary of the rhetorical tactic of grounding assertions about events in Bosnia on supposed parallels with the Holocaust. Meštrović’s role in propagating such

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invocation of elements of the Holocaust as the proper frame of reference for understanding events in Bosnia, especially images of concentration camps, and even holding a contest to find a Bosnian Muslim surrogate for Anne Frank. Just before his death, Bosnian Muslim leader (and first President of Bosnia and Herzegovina) Alija Izetbegović acknowledged to Bernard Kouchner that he had known at the time that these comparisons were false, that “whatever horrors were there, these were not extermina-tion camps,” although he acknowledged that he had used precisely that phrase in speaking with French President Mitterrand in 1993 in an attempt to precipitate bombing of the Serbs.55

The point, again, is not that there were not horrors in Bosnia and Croatia in the 1940s and 1990s, but rather that the depictions of them were systematically distorted to bring them into the framings set up by the Holocaust. If we are to understand events in Bosnia, the distortions caused by this framing must be clarified.

Distortions 3: Numbers Games

1941–45: World War II in Yugoslavia was exceptionally brutal even for that period in Europe, since it was simultaneously a war against foreign occupation, Croat and Serb attempts to create ethnic states by expelling or killing members of other nations, and communist revolution, with

literatures is noteworthy. A Croatian-American, he co-authored, with a Zagreb University professor who was one of Franjo Tudjman’s advisors in 1990, a book that purported to dif-ferentiate Western, thus civilized Croatia from Eastern, thus barbaric Serbia (S. Meštrović and S. Letica, Habits of the Balkans Heart: Social Character and the Fall of Communism [College Station, TX: Texas A&M Press, 1993]). This kind of literally Orientalist rhetoric in regard to ‘the Balkans’ has been well analyzed; see, for example, L. Wolff, Inventing Eastern Europe: The Map of Civilization in the Mind of the Enlightenment (Stanford, CA: Stanford University Press, 1994); M. Todorova, Imagining the Balkans (Oxford: Oxford University Press, 1997); and most recently J. Böröcz, ‘Goodness is Elsewhere: The Rule of European Difference,’ Comparative Studies in Society and History, 48 (2006), 110–38); in specific regard to the former Yugoslavia, see M. Bakić-Hayden, ‘Nesting Orientalisms: The Case of Former Yugoslavia,’ Slavic Review, 54 (1995), 917–31, and M. Razsa and N. Lindstrom, ‘Balkan is Beautiful: Balkanism in the Political Discourse of Tudjman’s Croatia,’ East European Poli-tics and Societies, 18 (2005), 628–50. Meštrović has used the facilities of his own university’s press (Texas A&M Press) to establish a series of books on eastern Europe, several of them asserting the evil of Serbs and Serbia. One is reminded of Milan Kundera’s observation that ‘the spirit of propaganda . . . reduces (and teaches others to reduce) the life of a hated society to the simple listing of its crimes’ (Kundera, ‘Paths in the Fog,’ in his Testaments Betrayed (New York: Harper Collins, 1995), p. 225.

55 B. Kouchner, Les Guerriers de la paix: Du Kosovo à l’Irak (Paris: Grasset, 2004), pp. 374–5.

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retribution by the communists against the various nationalist forces at the end of the war. Immediately after the war, official figures were generated, about 1,700,000 victims overall.56 Figures were sensitive because so many Yugoslavs had been killed by other Yugoslavs, albeit of different national groups, especially Serbs murdered by Croats, Muslims murdered by Serbs and, most sensitively, non-Communists killed by Tito’s Partisans. The sen-sitivity of all of this history is most apparent from the fate of a census of war victims that was conducted in 1964, after extensive preparation: after its completion, the census was not publicly released, and the press run of the books was destroyed in the late 1980s.57 Briefly opened to the public in the late 1980s, the 1964 data set was unavailable during the Milošević period, though it is now available and in fact was a main data source for Dulić’s study.

In the 1980s, the topic of the casualties in World War II was re-opened by Serbian and Croatian writers.58 Serb authors stressed what they called the genocidal nature of the NDH, increasing the numbers of people sup-posedly killed in Jasenovac alone to 700,000 (Vladimir Dedier) and even one million (Velimir Trzič).59 This explosion of false information provided the opportunity for responses by Croatian historians that minimized the casualties in Jasenovac, thereby attempting to discount the accusations of genocide. This was explicitly the main argument of Tudjman’s Bespuća, the first chapter of which refers to the “Jasenovac myth” and also the “thesis of genocidal Croatianism.” Tudjman devotes a great deal of space to showing the impossibility of the highest figures, and on this point he is correct. However, by focusing on the “myth of Jasenovac,” he and his crit-ics ignore the great majority of the killings in the NDH, which did not take place in “camps,” a point discussed in the next section.

1992–95: As the war developed in Bosnia, the numbers of dead were very quickly inflated. At a hearing of the U.S. Commission on Security and Cooperation in Europe (CSCE) on “War Crimes and the Humanitarian Crisis in the former Yugoslavia” on 25 January 1993, Congressman Christo-pher Smith stated that a few weeks earlier, Bosnian President Izetbegović had stated that more than 200,000 had been killed and that 70,000 people

56 Bogosavljević, ‘The Unresolved Genocide,’ reviews these studies.57 Ibid., pp. 152–4. Bogosavljević was one of the highest officials in the Federal Bureau

of Statistics in the Ante Marković period and thus had access to the materials.58 See Dragović-Soso, ‘Saviours of the Nation,’ pp. 100–14.59 Ibid., p. 111. It should be noted that Dedijer also was the first to raise to prominence

the issue of Serb killings of Bosnian Muslims during the war.

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were being held in detention camps.60 The 200,000 figure was repeated at a 4 February 1993 CSCE hearing by Bosnian Foreign Minister Haris Silajdžić. This 200,000 figure was widely accepted thereafter. At a hearing of the U.S. House International Relations Committee on 18 October 1995, Secretary of Defense William Perry said that more than 200,000 people had been killed; at a hearing before the U.S. Senate Armed Services Committee on 7 June 1995, Perry had said that in 1992, there were about 130,000 civilian casualties in Bosnia. At a National Press Club press conference on 24 June 1994, Bosnian Prime Minister Ejup Ganić raised the total to “a quarter mil-lion” killed. Silajdžić at least remained consistent, saying on the American public television news program Newshour on 13 May 1997 that 200,000 people were killed. Richard Holbrooke, on the other hand, in an interview on the tenth anniversary of the Dayton Agreements, managed to raise the figure to 300,000 dead.61 News accounts tended to keep to the 200,000 figure, used as recently as 18 December 2005 in the New York Times.62

Estimates by researchers during the war period generally tended to overstate casualties. Figures from institutions or individual research-ers within Bosnia and Croatia ranged from a low of 156,824 to a high of 329,000. Those from outside of Bosnia were somewhat lower, ranging from 25,000–60,000 by former State Department officer George Kenney to 200,000 by Chicago law professor Cherif Bassiouni.63 Since Kenney’s fig-ures did not include casualties from 1995, his high-end figure for casualties through 1994 (60,000) may actually have been the closest to accurate, but did not gain acceptance, and the 200,000 figure generated in 1993 became the most accepted figure.

Distortions 4: Restaging the Holocaust

Looking for Auschwitz

One effect of the establishment of Holocaust imagery as the standard for genocide has been to focus attention on concentration camps as the sites of the greatest horrors. In the former Yugoslavia, this imagery was

60 Transcripts of hearings of the CSCE may be accessed at http://www.csce.gov, where they are organized by issue and by country, then listed chronologically within each category.

61  On U.S. Public Broadcasting System, ‘The Charlie Rose Show,’ 23 November 2005.62 ‘The Civilian Toll of War,’ New York Times (18 December 2005).63 These studies are summarized and evaluated by Tabeau and Bijak, ‘War-related

Deaths,’ p. 194.

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adopted by Serbs in reference to the massacres in the NDH. A highly ten-dentious book from the late 1980s by Vladimir Dedijer exemplifies this approach: The Yugoslav Auschwitz and the Vatican: The Croatian Massacre of the Serbs During World War II.64 The “Yugoslav Auschwitz” was said to be the concentration camp at Jasenovac, with the methods of murder described in great detail. The unreality of the numbers game is shown in this single volume. The opening article by Mihailo Marković states that “In one huge concentration camp alone – Jasenovac – 750,000 Serbs were exterminated, together with Jews and Gypsies,”65 but the “Foreword to the First German Edition” that follows states that “In this infamous ‘death camp,’ over 200,000 people, mostly Orthodox Serbs, met their death.”66

Even if one were to accept this second figure (and Tomislav Dulić’s careful 2005 study indicates that it is about twice as high as the actual death count at Jasenovac), this would be perhaps one-third of the Serb victims of the war. As Aleksa Djilas has noted, the technology and trans-portation systems available to the Ustasha were not well developed,67 and most of the deaths occurred in direct attacks on villages and in towns, which makes sense: in the early 1940s, Yugoslavia was one of the least developed countries in Europe, with over 85% of the population living in villages and small towns, rather than cities. Dulić provides better figures: in the NDH, 19% of the Serbs killed died in camps, 45% in “direct terror,” and 25% in military-related actions; on the other hand, 95% of the Jews killed died in camps.68 Thus the focus on “concentration camps” rather than rural massacres missed the largest component of the 1941–45 war, a mistaken focus that makes sense only if the point of the exercise is not to commemorate actual victims so much as to elaborate on the symbol of the greatest victimization of the twentieth century: the Nazi concentra-tion camps, symbolized by Auschwitz.

The images of concentration camps became firmly linked with the 1990s events in Bosnia in August 1992, when two British television journalists

64 V. Dedijer, The Yugoslav Auschwitz and the Vatican: The Croatian Massacre of the Serbs During World War II (Buffalo: Prometheus Books, 1992). The American edition is a translation from the original German edition of 1988. The hostility of some segments of Serb nationalist writers to the Roman Catholic Church is beyond the scope of this paper, but this volume is by no means unique in the historiography of socialist Yugoslavia.

65 M. Marković, ‘A Preliminary Note on the Historical Background of the Present Yugo-slav Crisis,’ in V. Dedijer, The Yugoslav Auschwitz and the Vatican, p. 11.

66 G. Niemtietz, ‘Preface to the First German Edition,’ in Dedijer, The Yugoslav Auschwitz and the Vatican, p. 23.

67 Djilas, The Contested Country, p. 126.68 Dulić, Utopias of Nation, p. 313.

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delivered stories, accompanied by film, of Muslim prisoners in “detention centres” run by Bosnian Serbs in northern Bosnia.69 Some of the films showed emaciated prisoners, one extremely so; the apparent similarity between this prisoner’s condition and that of the extremely emaciated prisoners in Nazi extermination camps was seized upon by the world press the next day as evidence that the Serbs were running concentra-tion camps like those of the Third Reich.70 The Daily Mirror of London put a picture of the most extremely emaciated Bosnian Muslim prisoner on its front page, with the captions “Belsen ‘92” and “Horror of the new Holocaust.” Thereafter, “camps” became a dominant trope for the war in Bosnia, and a focus of international activity. The very first indictment in the International Criminal Tribunal for the Former Yugoslavia (ICTY) was that of one Dragan Nikolić, a commander of the Sušica Camp, and the first trial that of a guard at the Omarska camp, Duško Tadić. Other cases focusing primarily on criminal actions in “camps” were those of Mejakic et al. (Omarska Camp), Sikirica et al. (Keraterm Camp), Fustar et al. (Kera-term Camp), Mucic et al. (Celebici), Kvocka et al. (Omarska, Keraterm and Trnopolje Camps), Mejakic et al. (Omarska Camp and Keraterm Camp), Banovic (Omarska Camp and Keraterm Camp), including five of the first eight indictments made public.71

Considering the attention paid to “camps,” one might expect them to have been major sites of extermination, as were Auschwitz and Treblinka. The ICTY, however, found that the Omarska Camp operated only from late May to late August 1992, and that about 3,000 detainees passed through it during this time.72 The Keraterm camp, also established in late May 1992, held up to 1500 prisoners.73

69 These stories are extensively discussed in D. Campbell, ‘Atrocity, Memory, Photogra-phy: Imaging the Concentration Camps of Bosnia – the Case of ITN versus Living Marxism, Part 1,” Journal of Human Rights, 1 (2002), 1–33; part 2, Journal of Human Rights, 1 (2002), 143–72. The World Wide Web version, http://www.virtual-security.net/attrocity/atroindex .htm, contains links that show the original broadcasts and other relevant visual materials.

70 Ibid. Again, the web version of Campbell’s articles contains links showing interna-tional television and newspaper coverage; the print version contains some of the news-paper coverage.

71 Data taken from the index of cases on the ICTY website, http://www.un.org/icty/cases-e/index-e.htm. All of the references to ‘camps’ are in the index following the names of the accused, except for the Tadic case.

72 Prosecutor v. Miroslav Kvocka et al., ICTY Trial Chamber I Judgment, 2 November 2001 (http://www.un.org/icty/kvocka/trialc/judgement/index.htm), paras. 17 and 21.

73 Prosecutor v. Predrag Banovic, ICTY Trial Chamber III Sentencing Judgment, 28 October 2003 (http://www.un.org/icty/banovic65-1/trialc/judgement/ban-sj031028e.htm#II), para. 23.

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Obviously, this is not to say that the camps were not the site of mass criminality. There is no question but that large numbers of prisoners were mistreated, tortured, raped and murdered.74 The Trial Chamber in Bano-vic found that

The Keraterm and Omarska camps were operated in a manner designed to ill-treat and persecute non-Serbs from Prijedor and other areas, with the aim of ridding the territory of non-Serbs or subjugating those who remained. The detention of non-Serbs in the camps was a prelude to killing them or transferring them to non-Serb areas.75

To return to the words of Bosnian leader Alija Izetbegović, however, “whatever horrors were there, these were not extermination camps.”

Finding a Bosnian Anne Frank

The parallel between Bosnia and the Holocaust produced a great com-mercial success, and a major publicity one as well, with the publication of Zlata’s Diary: A Child’s Life in Sarajevo, immediately hailed as the work of “the Bosnian Anne Frank.”76 This “other diary of a young girl”77 was writ-ten by a thirteen-year old girl in Sarajevo, beginning just before the war (September 1991) and lasting until two months before her growing fame in Europe and America led to her evacuation with her parents, in late 1993. The young writer explicitly compares herself to Anne Frank, first in adopt-ing a name for her diary eight months into it (the earlier entries have no salutation), and just as the war begins (30 March 1992), “Since Anne Frank called her diary Kitty, maybe I could give you a name too.” She lists five puns on Bosnian words, then settles on “Mimmy,” which contains a dou-bled consonant and the letter “y,” neither of which is found in the Latin-script orthography of Serbo-Croatian she uses, but which probably work better for foreigners than the other choices would have: “Asfaltina, Šefika, Ševala, Pidžameta, Hikmeta.”78 Not quite six months later, she is told that “they want to publish a child’s diary and it just might be mine . . . and so I copied part of you into another notebook and you, Mimmy, went to the City Assembly to be looked at. And I’ve just heard, Mimmy, that you are

74 ICTY Kvocka Judgment, paras. 45–108.75 ICTY Banovic Sentencing Judgment, para. 22 (references omitted).76 Z. Filipović, Zlata’s Diary: A Child’s Life in Sarajevo (New York: Viking, 1994).77 C. Lehmann-Haupt, ‘Books of the Times: Another Diary of a Young Girl,’ New York

Times (28 February 1994).78 Filipović, Zlata’s Diary, p. 29.

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going to be published! You’re coming out for the UNICEF week! Super!”79 The book then became a bestseller in a number of languages. The diary actually ends when the author finds out that it will be published interna-tionally: the next-to-last entry (14 October 1993) reads “you’re going to be published abroad. I allowed it, so you could tell the world.”80 Apparently the job was done; but not quite, for one final entry three days later ends the volume with these words: “We haven’t done anything. We’re innocent. But helpless!”81

One must be pleased for the young author of this “Anne Frank with a happy ending,”82 yet wonder how much calculation went into the decision of whoever “they” were in the City Assembly, to publish a child’s diary, and the editorial decision to end it with the plea of innocence and helpless-ness, in case anyone had missed the point. The book is controversial even in Sarajevo. One review of Bosnian literature in the Sarajevo weekly Dani says “this controversial piece (to some a plagiarism of the famous Diary of Anne Frank) in any event supercedes all other Bosnian authors combined in terms of readership.”83 One must also wonder about the acuity of the journalists who covered this story when Janine di Giovanni’s “Introduc-tion” to the book describes Zlata, whom she met, as having “bright blue eyes,”84 since the girl on the cover of the Penguin edition, at least, has brown eyes. But one of the Western journalistic clichés used during the war to show that even though they are Muslims, the Bosnian Muslims are like other Europeans, was to make reference to their blue eyes.

The Involvement of the U.S. Holocaust Museum

The United States Holocaust National Museum opened on 22 April 1993, at a time when the Bosnian war was a major international story. At the request of the U.S. State Department, the organizers invited the leaders of all of the newly independent Yugoslav Republics except Serbia and Mon-tenegro (then the “Federal Republic of Yugoslavia”), including Croatian President Tudjman. Considering the controversy over his book Bespuća, this invitation attracted criticism from many quarters, and Elie Wiesel said

79 Ibid., p. 9680 Ibid., p. 198.81  Ibid., p. 200.82 F. Prose, ‘A Little Girl’s War,’ New York Times (6 March 1994).83 M. Stojić, ‘Bosanskahercegovačka književnost i rat,’ BiH Dani no. 216 (27 July 2001).84 Zlata’s Diary, p. viii.

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that “his [Tudjman’s] presence in the midst of survivors is a disgrace.”85 At the event itself, Mr. Wiesel “looked away” from Tudjman when the Croa-tian president took a seat near the podium, then denounced the atrocities in the Bosnian war and called for U.S. intervention.86

In 2001 the U.S. Holocaust Museum did, however, mount a major exhi-bition, now on-line, on “Jasenovac and the Holocaust Era in Croatia, 1941–1945.” The Museum also became involved in the preservation of records and materials from Jasenovac that had been taken to the Republika Srpska in Bosnia during the 1991–95 war.87 Both the U.S. Holocaust Museum and Israel’s Yad Vashem were involved in designing a new memorial centre at Jasenovac, which produced its own controversy in late 2005 and early 2006. That is, the new monument at Jasenovac will be patterned after Yad Vashem, and list the names of about 70,000 victims, but without indicat-ing their nationality or indeed anything else about them; it will also be included in a web of Holocaust museums in Europe linked to Yad Vashem. But representatives of the Serbs in Croatia, the Croatian Jewish Commu-nity, and the anti-fascist veterans of Croatia – that is, of the groups that represent most of the victims at Jasenovac and their descendants – have objected, saying that turning Jasenovac into simply a Holocaust museum obscures the true nature of the camp.88 This twist in the play of repre-sentations of victimhood solves the image problems for Croatia problems caused by Tudjman’s handling of the Holocaust, and also turns the Serb victims from being the central figures of Croatian massacres in World War II to being “collateral damage” in the Holocaust. There is a certain irony in this: the earlier Serb labeling of Jasenovac as the Croatian Auschwitz has succeeded, but Jasenovac, like Auschwitz, thereby becomes best known for its role in the Holocaust even though more Serbs than Jews were murdered there.

When we recall that most Serbs were not killed in camps, the new controversy shows again the flaw in using concentration camps as char-acteristic of genocide. Even the Serb representatives fall into the trap of assuming that commemoration should be done at Jasenovac, the “camp”

85 ‘Anger Greets Croatian’s Invitation to Holocaust Museum Dedication,’ New York Times (22 April 1993); see also ‘A Different Guest’ (editorial), Washington Post (4 April 1993).

86 ‘Holocaust Museum Hailed as Sacred Debt to Dead,’ New York Times (23 April 1993).87 ‘Croatian WWII Concentration Camp Records Made Available for First Time by

United States Holocaust Memorial Museum,’ U.S. Holocaust Memorial Museum Press Release, 13 November 2001.

88 ‘Jasenovac opet posvađao žive zbog mrtvih,’ Jutarnji.hr, (published on-line 13 January 2006 14:40).

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as representation of the events of 1941–45. Meanwhile, the great majority of the non-Jewish victims of the NDH will not be commemorated, since they did not die at Jasenovac.

Back to the 1991–95 wars, the Holocaust Museum had taken at least an informal position in 1997 that genocide had occurred in Bosnia. Thus when the Museum sponsored a discussion of a paper about whether the term “genocide” was actually appropriately applied to the ethnic cleansing campaigns in Bosnia,89 at the last moment the Director changed the title of the event from “Genocide in Bosnia?” to “Ethnic Conflict in the Former Yugoslavia: Perspectives and Implications,” because, he said, the Museum had already pronounced that genocide took place in Bosnia. The website devoted to responding to threats of genocide that is maintained by the Museum’s Committee on Conscience has a section on the Balkans, but the only incident specifically discussed is the massacre of Muslim males in Srebrenica in 1995, to which we now turn.

Extending the Law: The Mass Killing at Srebrenica as Genocide

In July 1995 the Bosnian Serb Army took control of the “safe area” of Sre-brenica in eastern Bosnia. The judgment of the trial chamber of the ICTY in the case of General Radislav Krstić states concisely what happened next:

Within a few days, approximately 25,000 Bosnian Muslims, most of them women, children and elderly people who were living in the area, were uprooted and, in an atmosphere of terror, loaded onto overcrowded buses by the Bosnian Serb forces and transported across the confrontation lines into Bosnian Muslim-held territory. The military-aged Bosnian Muslim men of Srebrenica, however, were consigned to a separate fate. As thousands of them attempted to flee the area, they were taken prisoner, detained in bru-tal conditions and then executed. More than 7,000 people were never seen again.90

Demographic experts employed by the Office of the Prosecutor of the ICTY have estimated that at least 7,475 persons were killed in this action, including one-third of all Muslim men enumerated in the April 1991 census

89 See R. Hayden, ‘Schindler’s Fate: Genocide, Ethnic Cleansing and Population Trans-fers,’ Slavic Review, 55 (1995), 727–78. That article, like this one, did not question the extent of the atrocities but rather only the applicability of the term “genocide” in this context.

90 Prosecutor v. Radislav Krstić, ICTY Trial Chamber I, Judgment, 2 August 2001, para. 1 (hereafter, Krstić trial judgment).

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of Srebrenica. Less than 1% of the victims were women, and 89.9% men between the ages of 16 and 60.91 While some of these men were killed in military action, thousands were executed. The result of the operation was to drive almost all Muslims from Srebrenica, which was almost 73% Muslim before the war; only a few hundred have since returned.

The criminality of these actions is clear. What may be questioned, how-ever, is whether the application of the term “genocide” to this action is appropriate. Since the ICTY did proclaim this mass killing to be genocide, a discussion of this question must focus on the reasoning of the Tribunal, specifically with the judgments of both the trial chamber and then the appeals chamber in Krstić.

Genocide is defined in regard to specific “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” including killing members of the group or causing serious bodily or mental harm to them; the goal of bringing about the “physical destruction in whole or in part” is important as well.92 It was undeniable that the Bosnian Serb Army had killed members of the group and caused bodily and mental harm to those who survived. The only question was that of intent: “whether the offences were committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”93

In regard to Srebrenica, this definition is more problematical than non-lawyers might realize. The original 1946 UN resolution defined genocide as “a denial of the right of existence of entire human groups,” and it was said at that time that the victim of genocide was not the individuals killed but the group.94 But what counts as “the group” in this case? The Prosecution was inconsistent, referring at various times to the Bosnian Muslims, the Bosnian Muslims of Srebrenica and the Bosnian Muslims of Eastern Bos-nia. The Trial Chamber agreed with the defense that the proper group was the Bosnian Muslims, leaving then the question of whether the destruc-tion of a part of that group would qualify as genocide.95

Having made this determination, however, the Trial Chamber then contradicted itself by saying that

91 All figures are from H. Brunborg, T. Lyngstad and H. Urdal, ‘Accounting for Genocide: How Many Were Killed in Srebrenica?,’ European Journal of Population, 19 (2003), 229–48.

92 Krstić trial judgment, para. 540. While the Krstić court uses the definition found in the ICTY’s founding statute, this is drawn directly from the relevant UN treaty definitions.

93 Ibid., para. 544.94 Ibid., para. 552.95 Ibid., para. 560.

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the killing of all members of the part of a group located within a small geo-graphical area . . . would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.96

Yet even annihilation of a small local group seems unlikely to threaten the larger “group as such,” already defined as the Bosnian Muslims, that is, the group itself (rather than the individuals that comprise it), which is the party to be protected from genocide. Further, the Bosnian Serb Army did not try to kill all members of the group, but rather only males between ages of 16 and 60; although they were treated appallingly, women, small children and old people were transported out of Srebrenica. In this con-nection, the Trial Chamber referred to “the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society,” thus incorporating into its reasoning stereotypes about Bosnian society.97 Strangely, the Trial Cham-ber also referred to the strategic location of Srebrenica and noted that by killing the men, the Serbs “precluded any effective attempt by the Bosnian Muslims to recapture the territory”98 – strange, because this reasoning seems to acknowledge a military strategic reason for killing the men of military age.

Through this reasoning, the Krstić trial chamber extended the defini-tion of “genocide” from acts made with the intent to cause the physical “destruction of a group as such,” to covering acts made to remove an eth-nic or religious community from a specific territory, especially one of stra-tegic importance.

A subsequent ICTY trial chamber expressed “some hesitancy” about adopting this reasoning, “which permits a characterization of genocide even when the specific intent extends only to a limited geographical area, such as a municipality.” This Trial Chamber was “aware that this approach might distort the definition of genocide if it is not applied with caution.”99 The Stakić court cited a law review article that had argued that if such a definition prevails, local mass killings might be taken to indicate that there was not a plan on a national level. Carrying this logic further, Tomislav

96 Ibid., para. 590.97 Ibid., para. 595.98 Ibid., para. 595.99 Prosecutor v. Milomir Stakic, ICTY Trial Chamber II, Judgment, 31 July 2003.

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Dulić notes that if local mass killings are defined as genocide, even the Holocaust becomes composed in part of many “individual genocides,” or local massacres.100 At that stage, the possibility arises of seeing recipro-cal or “retributive” genocides when forces of antagonistic racial, ethnic or religious groups each commit a local massacre of the other’s people, even of their military forces.101 Yet at that point, what distinguishes “genocide” from other ethnic, racial or religious mass killings?

The defense appealed the findings of the Krstić trial chamber that genocide had occurred, in part because the definition of the “part” of the protected group – men of military age in Srebrenica, as part of the Bosnian Muslims – was too narrow, and in part because the Trial Cham-ber had enlarged the definition of genocide to encompass expulsion of a group from a territory, rather than their physical destruction. The Appeals Chamber dismissed the Appeals, but in doing so made the issues less rather than more clear.

In regard to “part” of a protected group, the Appeals Chamber simply said that all that was necessary was that “the alleged perpetrator intended to destroy at least a substantial part of the protected group.” “Substan-tial part” was left undefined, but the Appeals Chamber then introduced a purely political consideration: “If a specific part of the group is emblem-atic of the overall group . . . that may support a finding that the part quali-fies as substantial.”102 It then stated that Srebrenica was important militarily to the Bosnian Serbs, because its capture would “severely undermine the military efforts of the Bosnian Muslim state to ensure its viability.”103 Further, the Appeals Chamber said that

Srebrenica was important due to its prominence in the eyes of both the Bos-nian Muslims and the international community . . . . The elimination of the Muslim population of Srebrenica, despite the assurances given by the inter-national community, would serve as a potent example to all Bosnian Mus-lims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.104

100 Dulić, Utopias of Nation, pp. 18–19.101  See, e.g., P. Brass, ‘The Partition of India and Retributive Genocide in the Punjab,

1946–47: Means, Methods and Purposes,’ Journal of Genocide Research, 5 (2003), 71–101.102 Prosecutor v. Radislav Krstić, ICTY Appeals Chamber Judgment, 19 April 2004 (here-

after, Krstić appeal), para. 12.103 Krstić appeal, para. 15, emphasis added; the depiction of the conflict as one between

a Bosnian Muslim state and a Serb state was empirically accurate (though it ignored the Croatian state in Herzegovina) but contradictory to the premise that the recognized Bos-nian government represented all of Bosnia’s peoples.

104 Krstić appeal, para. 16.

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This is an extraordinary statement, because it conditions “genocide” on the purely political determination that even a relatively small portion of a protected group is either so politically prominent or so strategically located that its removal from a territory, rather than physical annihilation, would symbolize the vulnerability of the larger group.

Having made this determination, the Appeals Chamber then put forth the normative statement that “the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide.”105 Yet the same court had just decided that in fact, “genocide” could be found when the intent was not to destroy an entire group, nor even a large part of it, much less “seek to deprive humanity” of a nationality, race, ethnicity or religion.

The question of whether genocide occurred in Bosnia became even more complicated with the decision of the trial chamber in the case of Momčilo Krajišnik, one of the most important political actors among the Bosnian Serbs from 1990 throughout the war. According to the indictment against him,106 Krajišnik

had de facto control and authority over the Bosnian Serb Forces and Bos-nian Serb Political and Governmental Organs and their agents, who partici-pated in the crimes alleged in this indictment.

He was indicted, and convicted, of crimes based on his political responsi-bility. The presentation of evidence lasted more than two years, involved 27,000 pages of transcripts, 3,800 Prosecution exhibits, 380 defense exhib-its and 27 Chamber exhibits.107 Krajišnik openly argued with his defense attorneys, so the defense was not unified and the case should have been an easy win for the Prosecution. And, in fact, Krajišnik was convicted of extermination, murder, persecution, deportation and forced transfer, all as crimes against humanity, involving imposition of restrictive and discriminatory measures and the denial of fundamental rights; murder; cruel and inhumane treatment during attacks on towns and villages and within various detention centers; forcible displacement; unlawful deten-

105 Krstić appeal, para. 36.106 Prosecutor v. Momčilo Krajišnik, Consolidated amended Indictment, 7 March 2002.107 Prosecutor v. Momčilo Krajišnik, ICTY Trial Chamber I, Judgement, 27 September

2006, para. 21.

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tion; forced labor at front lines; appropriation or plunder of private prop-erty; and destruction of private property and of cultural monuments and sacred sites. Further, all of this was the result, the court found, of a “com-mon criminal enterprise” involving Krajišnik and other persons in the Bosnian Serb leadership. Yet despite all of this evidence, the court found that “none of these acts were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such,” and thus that Krajišnik was not guilty of genocide or of complicity in genocide.108

The February 2007 decision of the International Court of Justice in the case brought by Bosnia and Herzegovina against Serbia and Montenegro109 did nothing to make matters more clear. It simply adopted the finding of the ICTY in Krstić that genocide had occurred at Srebrenica, without discussing the reasoning behind that decision.110 It also decided that Bos-nia and Herzegovina had not proved that the authorities in Belgrade had ordered the massacre, and indeed that “all indications are to the contrary: that the decision to kill the adult male population of the Muslim com-munity of Srebrenica was taken by the VRS [Bosnian Serb Army] Main Staff, but without instructions from or effective control by” Serbia and Montenegro.111 For this reason, the ICJ found that Serbia had not commit-ted genocide, incited the commission of genocide, conspired to commit genocide, or been complicit in the commission of genocide in Bosnia, but that it had violated the Genocide Convention by failing to prevent geno-cide in Srebrenica and by not arresting general Ratko Mladić.

Thus far, then, the international legal decisions in regard to the allega-tions of genocide in Bosnia are ambiguous at best. The ICTY and the ICJ have held that only the mass killings of Bosnian Muslim men at Srebren-ica at the very end of the war constituted genocide (ICTY Krstić decision, finding adopted by ICJ); that while a general of the Bosnian Serb Army who helped organize those killings was guilty of complicity in genocide, he himself had not intended to commit genocide (ICTY, Krstić); that a leading political authority of the Bosnian Serbs had no intent to commit genocide (ICTY, Krajišnik, referred to by ICJ); that Serbia neither ordered the Bosnian Serb Army to commit the murders at Srebrenica nor was it in

108 Krajišnik judgement, paras. 867–869.109 International Court of Justice, Case Concerning the application of the Convention on

the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007.

110  Ibid. Paras. 296, 297.111  Ibid. Para. 413.

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a position to control the Bosnian Serb Army once the killings began (ICJ); but that regardless of whether it could have prevented the killings, Serbia should have tried to do so but did not. All of these judgments rest on the decision in Krajišnik to say that a massacre of men in a single location counted as genocide, because that location was important both symboli-cally and militarily. While genocide requires the intent to “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” the courts have yet to find that anyone actually had that intent – not Serbia (the ICJ decision), nor the Bosnian Serb leadership (Krajišnik), nor even one of the generals who carried it out (Krstić). Presumably, General Ratko Mladić had the intent to commit genocide, but only on a local level. But then, why is a massacre at a local level considered to be “genocide” instead of, say, persecution, extermination, or mass murder? The Krstić decisions are certainly neither consistent nor convincing on this issue.

By broadening the definition of “genocide” to include expulsion from territories that are important strategically or symbolically, the Krstić appeals chamber seems to endorse a definition of genocide that would fit with that of none other than Franjo Tudjman, that “throughout his-tory there have always been attempts at a ‘final solution’ for foreign and other undesirable racial-ethnic or religious groups through expulsion, extermination, and conversion to the ‘true religion.’ ”112 As discussed ear-lier, Tudjman’s work was criticized because he questioned the extent of the Holocaust; but the logical grounds on which he argues are that since “genocide” is a universal phenomenon of history, no special guilt may be attached to those societies or nations that practice, in his words, “final solutions” through “expulsion” and “conversion” as well as extermination. The Krstić decision seems to accept genocide as the universal phenome-non that Tudjman envisions, though unlike Tudjman it does assign guilt.

The Krstić definition thus relativizes the concept of genocide to the point at which it equates conceptually the strategic killing of small numbers of people with actual efforts at the extermination of entire groups. Univer-salizing genocide in this way, however, means, first, that the extreme evil of attempts to exterminate a people as such, which the term “genocide” was originally coined to cover, is left without distinction from other cases. Further, this broad definition also means that most of the forced move-ments of population in the twentieth century count as genocide: not only the deportations and mass murders of Armenians from Anatolia in 1915,

112 Tudjman, Bespuća, p. 166.

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but of Greeks from Anatolia and Turks from Greece in 1923, Serbs from the “Independent State of Croatia” in 1941–45, Germans from Czechoslovakia, Poland and Yugoslavia in 1945, Poles from Ukraine and Lithuania in 1945, Muslims from India and Hindus and Sikhs from Pakistan in 1947, Palestin-ians from Israel in 1948, Jews from the Arab world after 1948, Turks from southern Cyprus and Greeks from Northern Cyprus in 1974, Croats from ‘Republika Srpska Krajina’ in 1992, Muslims from ‘Herzeg-Bosna’ in 1993, Azeris from Nagorno-Karabakh in 1993, Serbs from Croatia in 1995 – this is not a complete list. Some of these movements have been viewed as “population transfers” accepted by the international community, others “ethnic cleansing” or even genocide, and this labeling was made on political grounds.113 According to the Krstić decision, however, such political attribu-tion is legally appropriate, since a key criterion is the symbolic importance of the presence of that community on that territory to the international community. But what is to be gained by deciding after the fact that not only Turkey but Poland, the Czech Republic, Croatia, the Republika Srpska, India and Pakistan (among others) were founded on “genocide”?

Conclusion

The Holocaust has raised our tolerance for ordinary evil. This forces people to make their own plight more Holocaust-like.

M. Berenbaum114

The Krstić decision’s adoption of political criteria for determining “geno-cide” returns us to the consideration raised at the start of this paper: that the invocation of the term “genocide” is primarily a political process that creates images of a supposed past to serve the purposes of present-day political actors. The imagery gains its power from Auschwitz: rewarding the descendants of those murdered, and penalizing the descendants of those who did the murdering, seems justified when “genocide” is in ques-tion. But the stakes at issue are not simply remembering the fate of the victims, but rather how that remembrance can be used to benefit those who claim to be their descendants, or to penalize those said to be the inheritors of their national guilt.

113 Hayden, ‘Schindler’s Fate.’114 Quoted in G. Kenney, ‘The Bosnia Calculation,’ New York Times Magazine (23 April

1995), 43. Michael Berenbaum was at the time Director of the Holocaust Research Institute at the U.S. Holocaust Memorial Museum.

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With this in mind, the invocation by Serb politicians in 1990–92 of the mass killings of Serbs in the “Independent State of Croatia” (and thus in Bosnia) fifty years earlier was indeed a call to mobilize the descendants of those Serbs against the descendants of those said to have killed them, in order to justify aggressive Serb political actions (and later, military ones) against those Others. But the invocation of the short-lived camps of northern Bosnia in 1992–93 and the mass killing at Srebrenica in 1995 as “genocide” has equally been a call to mobilize the international commu-nity, and also Bosnian Muslims, against Serbs. The suit by Bosnia against Serbia in the International Court of Justice is primarily a tool by which Bosniak political forces are trying to undermine the Bosnian Serbs, even to eliminate the Republika Srpska.115 Yet the war in Bosnia was driven by the rejections by Bosnian Serbs and Herzegovinian Croats of inclusion in a unitary Bosnian state, and they still reject this.116 It is difficult to see how a Bosnian state can be imposed on the very large portion of the population that rejects inclusion within it – the precedents of Ireland, Kosovo, Cyprus do not augur well for such an effort. Any attempt to do so would require the maintenance of a police state, a difficult position to justify on any normative grounds. Of course, it could be proposed that those putative Bosnians who reject inclusion in Bosnia could be expelled from the state that the international community has recognized against their wishes (the Sudeten German solution) but that position is an endorsement of ethnic cleansing. Proposals for the elimination of the Republika Srpska privilege Bosniaks over Serbs, which is a major point of the invocation of “geno-cide” to label the events of the 1990s.

Katherine Verdery has argued that “entire battalions of [massacre victims] served as ‘shock troops’ in the Yugoslav breakup.”117 While her specific reference in this passage is to the mobilization of the dead of World War II, her model includes those of the later wars: “the concern with corpses continues, as the fighting produces even more graves. Their occupants become the grounds for mutual recrimination . . . and means of a politics of blame, guilt and accountability.”118 As this passage shows,

115 See ‘Editorial: Looking for a Culprit,’ in Transitions on Line (7 February 2006), http://www.tol.cz/look/TOL/.

116 See R. Hayden, ‘Democracy without a Demos? The Bosnian Constitutional Experi-ment and the Intentional Construction of Nonfunctioning States,’ East European Politics & Societies, 19 (2005), 226–59.

117 K. Verdery, The Political Lives of Dead Bodies: Reburials and Postsocialist Change (New York: Columbia University Press, 1999), p. 21.

118 Ibid., p. 102.

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these are dangerous politics, which produced new corpses, and not only because of the actions of ex-Yugoslavs themselves (though they were pri-mary: my own view in 1990–91 was that those who were insisting that history of “genocide” not be forgotten were doing so in order to repeat the conflicts that produced it). In regard to Srebrenica, a U.S. official told me that while the U.S. government knew that at the end of the war, Srebrenica would be part of the Serbian territory, they would not, “for moral reasons,” urge the Izetbegović government to evacuate the town. This “morality” left the Muslims of Srebrenica in place,119 where they were massacred by Bosnian Serb forces a year later. This does not exculpate the Serb forces of responsibility for the mass killing, but it is discomfiting that concerns about a “genocide” that had not actually taken place might have helped set the stage for these larger massacres later.

Perhaps the labeling of mass killings in Bosnia as “genocides” should give pause. The term “genocide” may not fit all mass killings. Invoking that term may well be a tactic for inciting hostility between the descendants of putative victims and alleged victimizers. It may serve to preclude dip-lomatic efforts on supposedly “moral” grounds. Finally, forcing accounts of ethnic conflict into the framework of the Holocaust distorts perceptions of the real causes and trajectories of the conflict, thus not only hindering understanding of the conflict itself, but also obstructing efforts to estab-lish new forms of relations between the groups involved.

119 Actually, rather more than that: the U.S. worked to break the U.N. arms embargo on Bosnia, and sent arms specifically to the Srebrenica region, where Muslim forces used them to attack not only the Bosnian Serb Army but Serb villages; these attacks may have contributed to the Bosnian Serb Army decision to massacre so many Muslim men. See C. Weibes, ‘Intelligence and the War in Bosnia 1992–1995: The Role of the Intelligence and Security Services,’ Appendix II to Nederlands Instituut voor Oorlogsdocumentatie NIOD), Srebrenica: A ‘Safe’ Area, http://www.srebrenica.nl/en/a_index.htm.

CHAPTER EIGHT

MASS RAPE AND RAPE AVOIDANCE IN ETHNO-NATIONAL CONFLICTS: SEXUAL VIOLENCE IN LIMINALIZED STATES

Rape is a concept that is now closely linked to violence, although this has not always been true. In English and American law, for example, rape until relatively recently was defined primarily in terms of lack of consent by a woman to sexual intercourse with a man (see Sanday 1990: 15–16, 62).1 From this traditional legal perception, violence was relevant as proof of lack of consent, but violent imposition of sexual intercourse by a man on a woman did not qualify as rape simply because of the violence – this was the famous “marital rape” problem, a traditional rule that held that at marriage a woman consented to sexual relations with her husband and could not later refuse him. On the other hand, lack of physical violence was also not always evidence of consent and in some circumstances was irrelevant. Thus “statutory rape” involved sexual intercourse with a female presumed, usually because of age, to have been incapable of truly con-senting, because she was by law presumed to lack full legal capacity to manage her own affairs. In such cases, as Blackstone put it (1783: 212), “the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion.”

Since the late 1970s most of these traditional rules have changed, so that marital rape, for example, is no longer a legal oxymoron (see Russell 1990). At the same time, the concept of “consent” has been problematized by the introduction of the concept of “power.” The rules governing intimate personal relationships that have been promulgated in many American work settings and in colleges and universities are premised on “consent” being dubious at best and presumptively fictive when one person is in an

1 As stated recently in the decision of the first case before the International Criminal Tribunal for Rwanda, “Rape has historically been defined in national jurisdictions as non-consensual sexual intercourse.” (The Prosecutor versus Jean-Paul Akayesu, Case no. ICTR-96-4-T, 2 September 1998; http://www.un.org/ictr/english/judgements/akayesu.html). The locus classicus of English common law, Blackstone (1783: 210) defines rape as “the carnal knowledge of a woman forcibly and against her will,” stressing on the following page that “a necessary ingredient of the crime of rape” is “that it must be against the woman’s will” (Blackstone 1783: 211). Blackstone also notes that the law of England “holds it to be a felony to force even a concubine or harlot” (1783: 213).

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inferior relationship of power to another. This problematization of “con-sent” is not inconsistent with the stress on violence. In English and Ameri-can law any physical touching of a person that is not “privileged,” usually by consent, is a battery, a cognate of the verb “to batter” that invokes the image of violence.2 In essence, the new strictures on the validity of con-sent reduce the scope of the privilege of sexual touching and presume that any unprivileged touching is violence. Indeed, the introduction of the concept of marital rape removes a privilege for battery that the law had earlier granted husbands as against their wives.

A focus on power is also seen by the definition of “rape” adopted by the International Criminal Tribunals for Rwanda and Yugoslavia: “a physi-cal invasion of a sexual nature, committed on a person under circum-stances which are coercive,” and “sexual violence” as “any act of a sexual nature which is committed on a person under circumstances which are coercive . . . . not limited to physical invasion of the human body, and may include acts which do not involve penetration or even physical contact.”3 This equation of non-consensual sexual activity with violence probably reflects the feelings of, by far, most women (and men) subjected to it. It is probably the abhorrence of this violence felt by many analysts that accounts for the tendency in most cultural and social anthropological work on the subject to be concerned with the social and cultural circumstances under which rape occurs (e.g. Sanday 1981 and 1990, Palmer 1989).4

At the same time, the concentration on when violence is likely to occur seems to me to obscure the related but largely unasked question of when sexual violence does not occur, in circumstances in which it might be thought that it would, not least by the people involved themselves. By this I do not mean identification of cultures that are said to be free of rape, if indeed any exist (see Palmer 1989). Instead, I want to raise the question of whether it is possible to identify instances of mass violence when rape is intentionally avoided, as opposed to those cases of mass violence where

2 Non-lawyers routinely confuse assault with battery or assume that they are synonyms. In law, an assault is an action that is intended to induce apprehension in the person to whom it is directed and that succeeds in this, while a battery requires physical touch. The classic first-year law school example is that the punch thrown in anger that misses but causes apprehension constitutes assault; the one that connects, a battery.

3 Akayesu (Rwanda Tribunal; see Note 1); this definition was adopted in the Yugoslav Tribunal in Prosecutor versus Zejnil Delalić and others, IT-96-21-T (19 November 1998); avail-able at http://www.un.org/icty/celebici/judgement/main.htm.

4 There is a literature on the topic in sociobiology, but I do not deal with it in this paper, since it addresses issues different from those under consideration here.

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rape has been widespread, and to determine what factors might account for the difference in manifestations of mass rape.

Comparing mass rape with rape avoidance has implications for issues of culpability in international law, discussed below. But looking at rape avoidance to break the conceptual lock of violence as definitive of the matter of rape or sexual assault is important for advancing understand-ing of sexual violence itself. I suggest that the recent focus on violence in place of consent has distorted perceptions of many cases of gender rela-tions in situations of ethno-national conflict by labeling almost all sexual relations between members of conflicting ethno-national communities as violent, despite what seem to be the strategic choices in the matter of the parties themselves. Ironically, this presumption of violence denies agency to all women of locally victimized communities, thus denying some of them the power, and even the right, to reconstruct their lives and identities if such reconstruction involves establishing links with men of the putatively victimizing community. This is not simply an academic point, because the current equation of certain kinds of sexual relations with violence has, I believe, obscured observation of sexual relations in which some women and men have, admittedly in a larger context of mass sexual violence, negotiated relationships that would, in other contexts, be accepted as legitimate unions.

In using the term mass violence, I also want to break one of the other presumptions of most research on rape, which views it as being an action of one individual person on the body of another, a point of view which seems common sense but which misses the possibility that rape is a social action, not simply an individual one.5 Of course, feminist analyses of rape start from the presumption that rape is socially determined, but it is the coordination of large numbers of rapists that is of concern in this paper. What I am interested in pursuing here is those circumstances in which large numbers of individuals commit rape, or intentionally avoid commit-ting rape, because both they and their victims see themselves as compo-nents of larger social entities, and rape would have a serious impact on the relations of those entities (and thus of their members) to each other.

5 Sanday’s study of fraternity gang rape (1990) makes similar points about the social nature of the phenomenon. Her work has clear relevance to some of the matters discussed in this paper, particularly in her links between the construction of masculinity via sexual violence in certain settings. However, Sanday’s express purpose is “to explore and ana-lyze the sexual subculture that encourages” fraternity gang rape (1990: 8) while mine is to identify conditions under which mass sexual violence occurs, or does not occur, in ethno-national conflicts.

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This paper begins with the reports of mass rape in Bosnia in the early stages of the war there, and the international response to those reports. It then moves to an examination of sexual violence in India, both the reported instances of mass rape in Punjab in 1947 and the lack of such mass rape in other “communal” violence in the 1980s and 1990s, using this South Asian material as a lens with which to re-examine events in Bosnia. The purpose is ultimately to understand not only the circumstances under which mass rape takes place, but also those in which sexual violence against women is largely avoided even during mass violence between different ethno-national-religious groups.

The comparison between the Balkans and South Asia may be partic-ularly apt because in both settings, religion provides the greatest deter-mining criterion in differentiating between “nations” (Serbs [Orthodox Christians], Croats [Roman Catholics] and Bošnjaci [Muslims]) in the first case and “communities” (Hindus, Muslims, Sikhs, Parsis, etc.) in the second (see also van der Veer [1994]).6 This means that in South Asia, as in Bosnia, perpetrators and victims of mass violence often speak the same dialects of the same languages and frequently were neighbors, or at least acquaintances, before their communities were disrupted.7

6 Religion in both cases is treated in this paper only in terms of its ethno-nationalist linkages, not in terms of religiosity (philosophy, values, world view, etc.). Considering the frequency with which members of various religious communities in South Asia and Europe have used the simple fact of communal difference as justifying mutual slaughter, I find little point in pursuing doctrinal justifications for their doing so. I am in any event deeply suspicious of attempts to link religiosity with particular forms of deplored social action, since such putative links are a staple of Orientalist and other deprecatory political rhetorics, especially in the Balkans (Bakić-Hayden 1995). In regard to violence, the fact that supposedly pacifistic Buddhists, for example, engage in mass slaughter may be a matter of a “tradition betrayed” (to cite Stanley Tambiah [1992]), but then again, there are too many such traitors to too many supposed “traditions” of tolerance to really take seriously the invocation of such “traditions.” In regard to Bosnia specifically, Islamicist Michael Sells (1996) has tried to link violence against Muslims with a supposed “Christoslavism” that posits Orthodox Serbs and Catholic Croats as united in attempting genocide against Mus-lims. This characterization is contrary to the history of the region in this century, since from 1941–45 Croats and Muslims were united in attempting genocide of Serbs, and Serbs and Croats were doing to each other in 1991 what both then did to Muslims in 1992. As I have argued elsewhere (Hayden 1999), the Bosnian Muslims could have been Bogomils, Baptists, Buddhists or worshippers of Baal and they would have received the treatment that they did in 1992 from the Croats and Serbs, on structural principles of identity. Of course, Serbs and Croats, echoing much Euro-American political commentary, themselves see Muslims as inherently violent, returning to the point about deprecatory political rhetorics.

7 A reviewer of this paper has noted that in South Asia, Pakistan opted for a religious definition of “the nation” but that India’s self-definition is that of a secular state. While this comment is certainly accurate in regard to the Nehruvian definition of India (Nehru 1946),

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Bosnia 1992–95: Rape as a War Crime

In the early to mid-1990s, the war in Bosnia was notorious. It contributed the term “ethnic cleansing” to the world’s vocabulary, and also led to an emphasis on rape as a war crime. An enormous literature on wartime rape appeared both within the former Yugoslavia and outside of it.8 Within anthropology the main contributions have been by Bette Denich (1995) and more recently by John Borneman (1998).

While there is no question that many women (and not a few men; see Žarkov 1997, Borneman 1998)9 were raped during the Yugoslav conflicts, the literature analyzing these events has been widely divergent. The lit-erature in the United States seems to have been dominated by feminist writers who knew nothing at all about the former Yugoslavia until it had become “the former Yugoslavia,” which is probably not surprising; how-ever, those who were familiar with the region were frozen out.10 This marginalization of American experts on the region may have been due to their reflection of discourses in Yugoslavia which ran counter to dominant trends in the U.S. Within the former Yugoslavia, long established femi-nists tended to maintain gender as central to their analyses, seeing rape

India’s secular identity has been challenged by the rise of the Hindu nationalist BJP party, so that there are competing definitions of the Indian “nation,” some of which are religious (see Varshney 1993, Ludden 1996, Khilnani 1997). The same reviewer states that Hindus and Muslims continue to live together in India “in the face of memories of rape across communities.” But it is important to note that in the places in Punjab where rape was most common, Hindus and Muslims no longer live together: Hindus no longer live in (Pakistani) West Punjab, nor Muslims in (Indian) east Punjab (see Wallace 1996: 765 table 1).

8 This literature is too huge to cite comprehensively. Well known components are Amnesty International (1993), Stiglmayer (1994), Allen (1996) and a very widely circulated article by Catherine MacKinnon in Ms. (MacKinnon 1993). Critiques of this literature appear in Žarkov 1997, Kesić 1994 and Korać 1996.

9 This paper concentrates on sexual violence against women, although some such vio-lence against men is also discussed. The primary focus on violence against women is in part a reflection of the similar orientation of most of the literature, although Borneman (1997) and Žarkov (1997 and n.d.) have recently brought sexual violence against males into the discussion. However, as discussed below in the context of India, there seems to be a difference in meaning and effect of sexual violence targeted against men as opposed to that against women: where such violence against a man shames him personally, sexual violence against women in the context of ethno-national conflicts shames the group to which she belongs.

10 Probably the worst example of this phenomenon was the action of a very prestigious law review which asked a scholar with three decades of research experience in Yugoslavia, author of several classic studies of sex and power in the Balkans, to write about rape in Bosnia, but then disinvited her in favor of Catherine MacKinnon, whose knowledge of the Balkans is minimal.

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as a common weapon of war, directed mainly against women. This “global feminist” view (Helms n.d. 1) was contrasted with a “genocidal rape” view (Helms n.d. 1) that saw the rapes of Muslim women in Bosnia as a unique historical phenomenon, “rape warfare” (Allen 1996) conducted by Serbs against Muslim and Croat women. In the first view, rape is a weapon of war, used against women; in the second, rape is a form not only of war, but of genocide (MacKinnon 1993, 1994).

The “genocidal rape” view was promoted by partisans of the several nationalist causes, although always in ways in which only women of their own nation had been so treated. As Dubravka Žarkov (1997 and n.d. 1) has shown, the representation of rape and of rape victims varies with the different nationalist governments and the information media they con-trol, which is not surprising; the use of reports of sexual violence, whether true or not, is a common propaganda technique. Interestingly, the invo-cation of “genocide” seems to have caused a number of western, particu-larly American, writers to decenter gender from their analyses, focusing on rape as a crime against a nation rather than a gender crime.11 Some of the most widely publicized American feminist writers thereby put them-selves into what should have been the bizarre position of criticizing long established feminists in the former Yugoslavia, becoming themselves sup-porters of particular nationalist causes at the expense of general feminist ones (see Korac 1996, Helms n.d.). The case of the University of Michigan’s Catherine MacKinnon is best known in this regard (see Kesic 1994).

Neither of these approaches, “global feminist” and “genocidal rape”, gives much real consideration to the circumstances under which mass rape has taken place,12 and none at all to those instances where mass rape might have been expected but did not occur. Furthermore, both

11 At nearly the extreme of political incorrectness, it is possible to argue that the invoca-tion of “genocide” in regard to Bosnia obscures, perhaps intentionally, the nature of events there, which are in many ways not distinguishable from events elsewhere (e.g. Punjab 1947) that have been classed as “population transfers” (and thus normal) as opposed to “genocide” (thus pathological). The major difference seems to be that in cases classed as “population transfers,” the partition was generally agreed to beforehand, while in those classed as “genocide” or “ethnic cleansing” it was not agreed to (see Hayden 1996). Events on the ground, however, are hard to differentiate in these cases.

12 MacKinnon did make a highly publicized assertion that Serbs raped because of wide-spread pornography in Serbia, an assertion that will seem strange to those who passed by Frankfurt airport sex shops on the way to Belgrade. By that standard, Germany and Hol-land should have been the rape capitals of Europe. MacKinnon also asserted that Serbs filmed their victims, a charge for which no proof has been offered other than MacKinnon’s own assertion (Žarkov n.d.).

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schools tend to see rape in Bosnia as the result of an intentional cam-paign directed by Bosnian Serb authorities. While there are reports of some direct invitations to soldiers to rape prisoners on the part of local commanders,13 however, it is improbable that any general authority actu-ally ordered, or directed, rape. As Susan Brownmiller has noted (1975: 87), while earlier incidents of mass rape during warfare (e.g., Bengali women by Pakistani soldiers in Bangladesh in 1971) were frequently said to have been “ordered,” no proof of such orders was presented (see also Helms n.d. 2). In regard to Bosnia, even the indictment before the International Criminal Tribunal for the former Yugoslavia (ICTY) of Radovan Karadžić for responsibility for rapes committed by Bosnian Serb forces rests pri-marily on the concept of command responsibility, that is, responsibility for the criminal actions of a subordinate when he “knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and responsible measures to prevent such acts or to punish the perpetrators thereof.”14

Without doubting the legal sufficiency of the command authority con-cept as a matter of international law,15 it is not sufficient as a matter of social science, or at least not to that part of social science that is con-cerned with determining the general characteristics of human behavior, particularly because there have been other cases of such widespread rape that cannot be linked to a command structure that extends beyond the local level. In other words, the question becomes whether there are kinds of conflicts in which mass rape is likely to occur regardless of whether

13 The ICTY registered its first conviction for rape as both a violation of international humanitarian law and as torture against one Hazim Delić (ironically enough, a Muslim convicted of raping Serb women), but as a direct participant in these acts, not as a mat-ter of command responsibility (Prosecutor versus Zejnil Delalić and others, IT-96-21-T [19 November 1998]). Similarly, conviction by the Rwanda Tribunal of Jean-Paul Akayesu for aiding and abetting rape involved cases in which he was directly in charge of those committing the act, not those in which command responsibility would have had to be attributed to him by virtue of his position.

14 ICTY, Prosecutor v. Radovan Karadžić and Ratko Mladić (Case nos. IT-95-5-R61 and IT-95-18-R61), “Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence,” 11 July 1996 (emphasis added).

15 Which is not to say that the concept cannot or even should not be doubted. “Negative criminality,” the basis of “command responsibility,” was accepted by the Tokyo tribunal over the dissents of the Indian judge, Radhabinod Pal, but this trial was clearly flawed, so much so that the dissenting opinion was never published officially (see Minear 1971). The problem with the concept of “command responsibility” is that it imposes liability regard-less of whether the commander actually knew of the crimes of subordinates. Nevertheless, it has been adopted by the ICTY in the Delalić case, the opinion of which discusses the matter extensively.

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general orders are issued to commit it. In order to explore this problem it is necessary to consider cases where mass rape has not occurred even though, on other occasions in the same part of the world and involving what are viewed locally as the same communities, it has. For this explora-tion we turn to India.

India

Punjab, 1947: Mass Violence with Mass Rape

Those who are inclined to think of rape in Bosnia during the 1992–95 war as “unprecedented” would do well to look at recent work on violence against women during the partition of Punjab between Pakistan and India in 1947 (Das 1995 and 1996; see also Butalia 1993, Menon and Bhasin 1993 and 1998). This partition was very similar in structure to that of Bosnia in 1992, involving as it did three intermingled communities (Hindus, Mus-lims and Sikhs) in proportions such that half of the population rejected the idea of joining Pakistan and the other half rejected the idea of join-ing India.16 One important difference between Bosnia in 1992 and Punjab in 1947 was that the “international community” accepted the partition of Punjab, so that a border was drawn and agreed to by both parties before conflict began; and in fact that border has not been contested since 1947 even though India and Pakistan have fought three wars since then.17 In contrast, the internal borders partitioning Bosnia were initially drawn militarily after the international community tried to prevent partition by recognizing a Bosnian “state” that was rejected by a large percentage of its putative citizens, under a government without constitutional legitimacy and which never controlled more than about a third of the territory of the supposed state (see Hayden 1993 and 1998). The de jure internal borders between the two “entities” in Bosnia were drawn at Dayton, and there is very little sign that Bosnia will become a single state in fact (Hayden 1998a).

Even though the border between India and Pakistan was drawn in advance of the independence from the British Empire that created the two states, and even though that border was never contested, the process

16 The similarities between events in Punjab in 1947 and those in Bosnia in 1992 are explained in greater detail in Hayden (1996).

17 India and Pakistan have fought over Kashmir, where no border was drawn, but not over the border in the Punjab, or between Bangladesh (formerly East Pakistan) and India.

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of partition involved massive violence and an “exchange” of populations that reduced the Hindu population of the new Pakistan from 17.5% (1941) to 1.5% (1961), and virtually eliminated Muslims from the part of Punjab that remained in India. The violence on all sides was massive, with esti-mates of about 8 million people having crossed the new borders, aban-doning their homes for new “homelands” where most had never been, with fatalities of about a half million people – all in six months.

During these events,

thousands of women on both sides of the newly formed borders (estimates range from 25,000 to 29,000 Hindu and Sikh women and 12,000 to 15,000 Muslim women) were abducted, raped, forced to convert, forced into mar-riage . . . . Untold numbers of women, particularly in Sikh families, were killed (‘martyred’ is the term that is used) by their kinsmen in order to ‘protect’ them from being converted, perhaps equal numbers of them killed them-selves. The violence women experienced took particular forms: there were accounts of innumerable rapes, of women being stripped naked and paraded down streets, of their breasts being cut off, of their bodies being carved with religious symbols of the other community. (Butalia 1993: WS-14)

Both states, India and Pakistan, made recovery of “abducted women” a matter of national honor, insisting that even women who had mar-ried members of the other community and borne children by them be “returned” from their homes to their new homelands where, in many cases, their families did not want to receive them (see Das 1995).

While there is some indication that much of the violence in Punjab was planned by local leaders, no one has suggested that the widespread patterns of ethnic conflict were ordered by central authorities in either India or Pakistan. It is also unlikely that the mass rapes and other sexual violence directed against women were ordered by the governments of India and Pakistan.

This is not to say, however, that the sexual violence directed against women in Punjab in 1947 was somehow the result of passions unleashed in the fury of partition. Instead, I would argue that the sexual violence was indeed strategic, even if it was not ordered by any central authority. As Veena Das and her colleagues have shown, drawing on the work of Charles Tilly (1986) on collective action, mob violence is highly patterned, and “there is no contradiction between the fact that, on the one hand, mob violence may be highly organized and crowds provided with such instru-ments as voter’s lists or combustible powders, and on the other that crowds draw upon repositories of unconscious memories” (Das 1990a: 28).

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Delhi 1985 & Hyderabad 1990: Mass Violence without Rape

The sexual violence of the partition of Punjab may be compared to other instances of communal violence in which sexual violence against women was strikingly absent. Veena Das recounts the experiences related to her of survivors of Hindu attacks on a Sikh neighborhood in Delhi in 1985, following the murder of Indira Gandhi by her Sikh bodyguards. In the neighborhood that she studied,

there were eighty deaths among the 150 households in this and the adjoin-ing block. The majority of the dead were adult men, though one woman was burnt with her husband because she refused to leave him . . . . All the men killed were burnt alive in the presence of their wives. Many men had managed to escape, either by donning the clothes of women or by hiding in neighborhood houses (Das 1990b: 362).

That only men were targeted is shown by the report of a girl who, rec-ognizing some of the people in the crowd besieging her house, begged them to spare her baby brother, who was hiding in the house: when her calls were heard, one of the men said “Why did you not say so earlier? Do you think we have come here to kill children? (Das 1990b: 348, emphasis in original). Similarly, a woman whose three small sons were burnt alive with their father when he refused to come out of the house blamed her husband for the deaths: referring to her husband and her eldest son, she said “Why did they not open the door and come out and give themselves up to the crowd? The crowd was not out to kill young children” (Das 1990b: 350).

As Das shows, the targeting of the men was not only to eliminate them physically, but rather to humiliate the men of the entire Sikh community, who could not defend themselves, or their homes, unless they ran and hid (often leaving behind close kinsmen) or shamed themselves by dressing as women, or by having their distinctive beards and long hair cut, under-stood as “a public humiliation and emasculation of Sikh men” (Das 1990b: 386). The sparing of women even reinforces this image of impotency: one man explained that as he and his wife began to run away from a crowd, they were attacked by people using lathis (long staffs). When the wife tried to come between her husband and the crowd

one of them said to her courteously, “sister, please move away.” When I real-ized they were calling her sister, I knew that no harm would come to her. So I left her and ran. They intended no harm to women. Since then I have sent my wife to get rations or to gather news. (Das 1990b: 387).

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In a cultural context in which men are the public figures, this man was reduced to depending upon his wife for contacts with the outside world.

To be sure, this targeting of men specifically is itself a form of gendered violence. In so far as it shames men sexually it is also sexual violence under the Rwanda Tribunal’s Akayesu definition, since the Tribunal said that such violence “may include acts which do not involve . . . physical contact,” such as forcing a woman to do gymnastics, naked, before a group of men.18 Sikh men in Delhi who were humiliated in this way wanted to move from the neighborhoods in which they had been living (Das 1990b: 386–387), which might indicate that sexual violence against men has a similar result as that against women, inducing them to abandon what had been their homes. Yet Das (1990b: 386) also notes that Sikh women victims felt that they could still continue to live in Delhi, and in fact, most vic-tims did remain there. As noted by one reviewer, there may be nuances of what “living together” means, so that if Sikh neighborhoods became more isolated from Hindu ones, gendered violence against men may have provoked increased separation. On the other hand, the Punjab violence of 1947, like that in Bosnia in 1992–93, was premised on not only complete separation but creation of a state border between the newly (and forcibly) homogenized territories of each group; this is partition, discussed in the next section.

What is striking from the accounts of violence against Sikhs in 1984 is the lack of sexual violence against women, read against the widespread sexual violence that occurred during partition (it should be noted, for those who are not South Asianists, that Sikhs are Punjabis). Why was it that attacking Hindus “intended no harm to women”? It might be thought that this avoidance of rape could be due to an inherent respect of Hindus for Sikhs, who were, after all, allies in the Punjab against Muslims. But this explanation fails to account for the other incidence of patterned avoid-ance of sexual violence during communal riots in India, that between Hin-dus and Muslims in Hyderabad in 1990 (Kakar 1995).

In the south Indian city of Hyderabad studied by Sudhir Kakar, Hindus and Muslims lived in separate neighborhoods but in close contact, inter-acting daily. The interaction did not include sexual relations: both Hin-dus and Muslims disapproved of intercommunal dating, to say nothing of marriage, although Muslims were more vehement in their disapproval than Hindus. (Of course, since intermarriage between Hindu castes is

18 Akayesu, Para. 7.7.

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generally still uncommon in India, to say nothing of between members of different religious communities, this aversion is hardly surprising). Mem-bers of both groups also regarded it as impermissible to rape a woman of the other community, even during times of riot, or to kill women of the other community, even in times of riot (Kakar 1995: 172 and 181).19

Yet these attitudes may not explain the general avoidance of sexual vio-lence in riots, particularly when we recall the widespread sexual violence in the context of partition in 1947. A much more telling reason is stated by Kakar, drawing an explicit contrast with Bosnia (but not, interestingly enough, with the partition of Punjab):

In Hyderabad, even now, rape is not used as a vehicle for the contempt, rage, or hatred that one community feels for the other as it is, for example, in Bos-nia . . . . Unlike in the Bosnian conflict, after a riot the Hindus and Muslims still have to live together and carry out a minimal social and considerable economic interaction in their day-to-day lives. As [Hindu leader] Mangal Singh remarked “ ‘A few days after the riot is over, whatever the bitterness in our hearts and however cold our voices are initially, [Muslim leader] Akbar pelwan still has to call me and say “Mangal bhai [brother], what do we do about that disputed land in Begumpet?” And I still have to answer, “Let’s get together on that one, Akbar bhai, and solve the problem peacefully.’ ” Rape makes such interactions impossible and turns Hindu-Muslim animosity into implacable hatred. (Kakar 1995: 110).

What is striking here is the way in which the organizers of the riots con-tinue to communicate with each other, and rule some forms of actions unacceptable. Certainly such continuing contacts were seen in Bosnia. But the sheer rationality of the argument – that rape makes continued coexistence impossible – should alert us to the conditions that make mass sexual violence acceptable. For what Bosnia in 1992 and Punjab in 1947 share is partition, not only of territory but of population. The whole point of the violence is to ensure that there will be no continuation of coex-istence, and rape seems a powerful weapon, even more powerful than murder, to bring about that end.

19 This is not necessarily a moral issue, however, or at least not one based on consider-ations of women’s rights. Kakar notes that at least some Muslims regard rape of a Hindu woman as a sin because she is haram, forbidden “like the eating of pork or the meat of an animal not slaughtered in the ritual way. Rape of a Muslim woman, on the other hand, is not a sin because she is halal” (Kakar 1995: 175).

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Some Common Features: Partition and the Importance of Women’s Honor to Men

The most obvious commonality between Bosnia in 1992 and Punjab in 1947 is partition, meaning a situation in which territory previously con-sidered to be part of a single state is divided into two or more new states. While partition can be accomplished peacefully if there are not compet-ing ethno-national claims on the territory (e.g. the partition of the former Czechoslovakia), the matter is prone to violence when groups that view themselves as distinct from each other stake competing claims to the con-trol over territory. In such cases, demands for self-determination of the group amount to a charter for what is now known as “ethnic cleansing” (Hayden 1996a). Violence here is aimed at driving the other community from land claimed by the victimizers. Thus rape was used in both cases, Punjab 1947 and Bosnia 1992–93 because, as Kakar says, sexual violence does turn animosity into hatred. But two further points are in order.

The first is that the hatred to be engendered is that of the victims for the victimizers. Rapists don’t rape in this situation because they hate victims so much as to make the victims hate them, to not want to return.20 Note that in the case of Punjab, the borders were drawn before the violence began, but the violence served to ensure that members of the minority community thought it in their own best interest to leave. In this connec-tion, rape is rational, as may be other forms of targeted violence, such as sniping. As one Serb sniper in Sarajevo told an interviewer “This isn’t a matter of hatred,” at least not on his part.21 A similar sentiment was expressed by a Sarajevo sniper from the other side, who seemed only to hate himself:

If peace arrived tomorrow, know what I’d do? I’d go and seek out people I shot at. I’d recognize them with no problem. I’d introduce myself to them. Seriously. I’d say, I shot at you, here I am, punish me. That would save me, even if they killed me (Vuković 1993: 31).

On the other hand, hatred was the emotion named explicitly by a Sarajevo Muslim woman victim of sexual violence (Vuković 1993: 134):

20 One reviewer has suggested that engendering such hatred is counterproductive because it induces a quest for revenge, which means a continuing relationship of hostility. But my point remains: hatred precludes coexistence, so in so far as the goal is to drive victims away and ensure that they will not return, at least as long as the victimizers control the territory, inducing hatred works.

21 In reporting this comment I violate a fieldwork rule: it’s not in my notes, but was engraved in my memory.

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I’m a Muslim woman, thirty-five years old. My second, my newborn son, I named him Jihad, so that he wouldn’t forget his mother’s oath – revenge. When I first nursed him I said, “If you forget, let this milk be cursed. So help me God.” . . . the Serbs taught me hatred.

Yet to point out the instrumental rationality of the act still does not explain why it is this act that is so effective in dividing communities that have lived together in relative stability even if punctuated by periods of extreme brutality. In this regard, the key to explanation may lie in the same considerations that make rape unacceptable in situations such as the riots in Delhi in 1985 or Hyderabad in 1990, when rape was not com-mitted. Rape is unacceptable when the lesson is only to display domi-nance over people with whom the group asserting dominance expects to keep on living. When the lesson is to show that life together is finished, however, rape is an extremely effective tool for conveying the message.

Mass rape, then, is also violence that is symbolic; but the key to under-standing the social success of the symbolism lies in the basic meaning of rape as a communicative act. As Das has noted (1995: 56), “The woman’s body . . . became a sign through which men communicated with each other.” This communication is not only expressed through the violation of the woman’s body, but also through conscious avoidance of such viola-tion. In an expression of structural logic well known to anthropologists, the message of rape/rape avoidance is an inversion, expressing, as Levi-Strauss might put it, the same message but in different contexts.

Of course, the concept of message here seems problematical. After all, if rape and rape avoidance are both purposeful, the messages conveyed seem themselves inverted: no further common life/dominance but con-tinued coexistence. Yet these inverted messages are only possible if there is a message common to both, which is that the honor of the group (in which males are the normative actors) is determined by the honor of its women and by the masculinity of its men. It is only in this context that rape/non-rape can be expressive acts in the context of ethno-national or communal violence, conveying the messages to the victim’s group of sub-ordinated coexistence, or of expulsion.

Rape and Territoriality: Sexual Violence in Liminalized States

Using Punjab data, Menon and Bhasin (1998: 43) have argued that sexual mutilation of women treated “women’s bodies as territory to be con-quered” and “engraved the division of India into India and Pakistan on

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the women of both religious communities in a way that they became the respective countries” (emphasis in original). Similarly, the use of Bosnian data to posit a connection between rape and exclusive territoriality has been posited recently by John Borneman (1998) and Dubravka Žarkov (1997, n.d.), independently of each other and in rather different ways.

In a very rich analysis of materials from government-controlled mass media in Serbia and Croatia, Žarkov has found that specific textual strat-egies were used to exclude certain sexually violated bodies (male and female) from territories where they do not belong, a “sexual geography of ethnicity” (Žarkov n.d.: 211). Since the national narratives are about land, the (ethnic) nation and the connection between the two, bodies excluded from these narratives are also excluded conceptually from the national territory. In these accounts raped and castrated Muslim men and raped Muslim women are excluded from the territory of Croatia and raped Mus-lim women from the territory of Serbia. At the same time, Serb news-papers reported on Serb women raped by Muslims, but only when the women thereby became pregnant.

To Žarkov, the rhetorical strategy of the Croatian accounts is aimed at distinguishing rapists (Serbs) and their victims (Muslims) as inferiors, primitive, non-European, thus non-Croatian, and their violent interaction as foreign to Croatia itself. Raped Croat women are almost never men-tioned in the Croatian accounts, since to do so would be to acknowledge their similarity with Muslim victims and also to acknowledge that the body of Croatia itself was rendered impure. Further, Croatian accounts rarely mention rapes within Croatia or by Croatian forces, thus preserving the purity of the territory and its rulers.

Serbian accounts, on the other hand, are driven by a need to establish Serbs as victims, in part as a reaction to the widespread international con-demnation of Serbia as an aggressor. Whereas Croatian accounts avoid mention of Croat victims of rape, Serb accounts focus on Serb women victims. Their violation is also outside of Serbia itself, a fact that links the territory of the violated bodies with that of the violated nation: where the nation’s state is under attack, the bodies of its women are unprotected and, worse, appropriated by the enemy. The focus on Serb women who have been impregnated by rape serves to make this point, while at the same time showing that the real victim is the Serb men: “the suffering of Serb women – so emphatically depicted – served to create empathy with the central figure through which nationhood is constructed in Serbian media – the Serb man. For he is the one who is deprived of generations of brave soldiers” and other descendants (Žarkov n.d.: 250).

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Žarkov concludes that women’s bodies are not symbolic markers of ethnic or national identity (as per, for example, Mežnarić 1994, Mostov 1995) but that violated bodies are constructed as the ethnic territories themselves, with rape as the marker that symbolically defines the female body as itself territory while also excluding the now polluted body from geographical territory in which it is no longer welcome.

Borneman for his part has argued that “ethnic cleansing is a concep-tual and practical extension of two institutionalized modes of perception and behavior – ‘territorial sovereignty’ and ‘heterosexuality’ ” and that “European heterosexuality . . . in tandem with territorial sovereignty gen-erated the categories and inter-national forms that both motivated and made sense of ethnic cleansing in Bosnia, including rape as its most vio-lent expression” (Borneman 1998: 274–275). In this analytical framework, “heterosexuality” is “a political institution, a program for the construc-tion and institutionalization of a particular kind of gendered and sexed human . . . more a habitus (institutions, processes, practices) than an ide-ology (heterosexism) or a sexual preference” (Borneman 1998: 274–275). Borneman then marshals Anglo-American anthropological analyses from different European sites to posit a (common?) European “phallic complex” of “male fears of the desire for [sexual] penetration, of sexual inadequacy, of anarchic sexual desire” that are “linked together and metaphorically extended onto a state apparatus that functions within and as a paradigm for” the complex (Borneman 1998: 286). He links territory to heterosexu-ality through the concept of “nation,” a distinct people, with “an integ-rity that manifests itself only at the moment of its threatened violation” (1998: 294). Thus, “a pronatal policy for oneself often entails a genocidal policy for the other” (1998: 286), and rape, both of females and of males, is the violent manifestation of the phallic complex.

Elements of Borneman’s formula have been explicated in detail by others, such as in Katherine Verdery’s (1996) work on the gendering of nationalism in eastern Europe, or my own linkage of self-determination of peoples with ethnic cleansing of territories in Yugoslavia (Hayden 1996a). Borneman’s broader, encompassing linkage of gender – hetero-sexuality – territory – violence – ethnic cleansing – rape is thus impres-sive, but unsatisfying on several counts. First, it begs the question of the circumstances under which the linkage of territoriality and nation, thus in his schema with heterosexuality, actually does produce mass rape. The qualified assertion that a pronatal policy for oneself often entails a geno-cidal policy for the other does not specify when this might occur. Thus Hungary, for example, has seen a strong pronatalist push from the post-

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socialist governments (Gal 1994) but no sign of genocide; and Romania’s extreme experience with pronatalism, while doing violence to almost all women (Kligman 1992), did not produce mass rapes of ethnic Hungarian women.

The answer, I believe, can be found in the circumstances of partition, which involves creating new borders through what had been an undivided land.22 I say “create” new borders rather than “draw” new borders because I want to stress the sheer physicality of the event, which usually includes the erection of checkpoints and other physical barriers. This is true even when the physical barriers are erected along what had until then been an administrative boundary between components of the same state, thus creating an international frontier. Physically, this process means creating new borders, not simply transforming old ones, which is why the idea that recognizing the Yugoslav republics as states did not mean changing bor-ders was simply sophistry. At the same time, these new physical borders (gates, barbed wire) on land are accompanied by new social boundaries in which pre-existing social divisions attain a new meaning. Thus just as par-tition transforms the demarcations of territory, social boundaries within the population of that territory are also transformed.

Partition, then, is not only a liminal state, but a time when the state itself is liminal, and the questions of whose state it is, and how the popula-tion will be defined, are open. Here we have the circumstances in which the messages of subordinated coexistence or expulsion will be sent. After these issues are settled, mass rape is no longer likely, because either

22 A reviewer has pointed out that there may be a difference between the partition of Punjab in 1947 and that of Bengal the same year, since little sexual violence was reported from Bengal. I am not sure, however, whether this difference reflects less sexual violence in Bengal or just less reporting of it. Certainly, the “Direct Action Day” in Bengal of 16 August 1946 and its aftermath produced widespread Muslim assaults against Hindu women (Kho-sla 1989: 76). At the time of partition, a year later, Hindu rhetoric stressed sexual assaults on Hindu women by Muslims (see, e.g., Chatterji 1994: 242, 243). Whether such attacks actually took place is another question. When it is recalled, however, that the first serious studies of sexual violence in 1947 Punjab were written only in 1993 (Butalia 1993, Menon and Bhasin 1993), it is possible that the stories have simply not been told. In this regard, it is also interesting that Taslima Nasrin’s journalistic novel Shame (1994) focusing on sys-tematic efforts by Bangladeshi Muslims to drive out Hindus in the 1980s, has sexual vio-lence against both women and men as a central theme. Nasrin presents many accounts of sexual violence in this novel that she affirms are drawn from actual events, but I am not able to check her sources, most of which are in Bengali.

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coexistence will have been reconstituted or the newly consolidated groups will have separated.23

As final revisions were being made to this article, reports emerged of mass sexual violence in Kosovo (see, e.g., Fitamant 1999; New York Times 1 May 1999: A6 and 22 June 1999: A1; Los Angeles Times 27 May 1999 [World Wide Web edition]). While the reports themselves were sketchy (all sources report strong hesitation by victims to report what they and their families regarded as shameful), sexual violence in the context of the expulsion of the majority of the ethnic Albanian population of Kosovo would be in keeping with the argument of this paper, particularly as such violence was not reported before that campaign of expulsion began. It is clear that the mass expulsion of ethnic Albanians did not start until after NATO attacks on Serbia were begun (see, e.g., U.S. Department of State 1999: 6), and sexual violence is also only reported after that time.

Negative Evidence: Rape Avoidance in Stable States

Support for the proposition that mass sexual violence occurs when ethno-national conflicts make the state unstable might be sought in cases in which members of antagonistic groups, subjects of mass sexual violence in regions where partition renders the state itself liminal continue to coexist in parts of the former state in which control over the territory is not contested. Thus in India in 1947, some Muslims from western Punjab fled east to Delhi rather than west to Pakistan (Wallace 1996: 764), feeling (largely correctly) that they could indeed continue to live with Hindus even though they could not stay in Punjab. Similarly, in the former Yugo-slavia, the Sandžak region of Serbia and Montenegro bordering Bosnia has a large population of Slavic Muslims, who now call themselves Bos-niaks. In 1992–93, while mass sexual violence was taking place very close by in Bosnia, these Bosniaks faced discrimination and harassment, and some were forced to leave their homes (see, e.g. Human Rights Watch/ Helsinki 1994; Humanitarian Law Center 1995). Yet it is striking that even when reports of violence by Serbs against Muslims are reported, there are

23 Which is not to say that new social partitions may not produce new campaigns of mass rape. Taslima Nasrin’s novel Shame (1994) is again interesting, since it is a fictional account of the progressive persecution of Hindus in Bangladesh after independence. Where in 1971 (West) Pakistanis were seen to be mass-raping Bengali women (see Brown-miller 1975), by the 1980s Muslim Bengalis in Bangladesh were raping Hindu Bengalis in an apparent effort to convince the latter to emigrate.

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few if indeed any reports of sexual violence in this region.24 Considering the attention that international news media were paying to rape at that time, had mass sexual violence been occurring then in Sandžak, it seems unlikely that it would not have been noted.25

The difference in political stability is important: the statuses of Delhi as capital of India, or of Sandžak as part of Serbia, were not in question, and neither was control over either territory. Thus in each case the state was not liminal, and sexual violence was not pronounced. Similarly, once territories in Bosnia had been successfully “ethnically cleansed” to consol-idate control, sexual violence was no longer practiced against the minori-ties who remained.

The difficulties of studying the absence of a social phenomenon are pronounced, however. In the case of the avoidance of sexual violence, this difficulty is increased because of the presumption that the acts in question are pathological, meaning that normal people would not act this way. The normative and moral frameworks that lead many observers to assume that mass assaults had to have been commanded may also lead to overlooking those instances in which sexual violence was consciously avoided, on the assumption that non-occurrence is always the norm. Yet if mass rape and rape avoidance are both forms of expressive action, the assumption that sexual violence is simply pathological is unwarranted. The

24 In addition to Human Rights Watch/Helsinki (1994) and Humanitarian Law Center (1995), other sources include the periodic reports of the Special Rapporteur of the United Nations Commission on the Situation of Human Rights in Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia. Since 1993, these reports have documented human rights abuses in Sandžak, but none of them mentions sexual violence.

25 In a comment on an earlier draft of this article, Eugene Hammel asks whether there were reports of sexual violence in the course of the ethnic cleansing of areas in Croatia, in, for example, Slavonija (1992) or the Krajina (1995), and asks whether the fact that in Croatia all involved were Christians (Orthodox Serbs, Catholic Croats), and thus perhaps less socially distant than either to the Muslims of Bosnia, mattered. Certainly very little sexual violence was reported from these parts of Croatia (although a Serbian dramatic film on the siege of Vukovar, Vukovar: One Story, did include a rape scene; interestingly, the victim in this Serb film was a Croat woman). However, opportunity may have been miss-ing: most accounts of the fighting in Croatia had it preceded by the withdrawal of women and children from “mixed” regions to more safe places as tensions rose in 1991, while in the Krajina in 1995, virtually the entire Serb population fled before the Croatian army, leaving only elderly people. In contrast, Bosnia seems to have involved the more sudden explosion of violence in communities that had not separated, perhaps in part because there was no place for many people, and particularly for Muslims, to go. In so far as religious distance is concerned, anecdotal evidence that I heard in the former Yugoslavia before as well as after its collapse indicates that Serb women were raped by Croatian Ustaša in 1942, at the start of the Croatian campaign against the Serb population.

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question for social science is: are there conditions under which actions such as mass rape are likely, because otherwise normal people are likely to engage in them? To answer this question one must hold in abeyance normative evaluations because they might skew not only the interpreta-tion of data collected but also the collection of data themselves: it is easy to overlook that which one does not wish to see.

Implications

The implications of this analysis are in part contradictory and certainly are not comforting.

On the one hand, the view of rape as a communicative act reinforces the appropriateness of treating mass rape as a war crime rather than as a pattern of supposedly random acts of individual soldiers. At the same time, prosecuting rape as a war crime might be interpreted as reinforcing the very message of separation that mass rape sent in the first place. It is into precisely this trap that otherwise feminist writers such as Cath-erine MacKinnon have fallen: by viewing rape as “genocidal” they have in fact accepted the message that coexistence is not possible, for how could anyone expect victims of genocide to live communally once again with perpetrators of that act? Thus labeling rape as “genocidal” would seem to acknowledge its effectiveness as a tool for partitioning populations.

The potential conceptual problem caused by recognizing that accept-ing mass rape as a war crime runs the danger of tacitly accepting the very premises that make it effective need not trouble us too much, any more than the closely related proposition that accepting the concept of “geno-cide” means tacitly accepting the principles of exclusion that inform its perpetrators, since “genocide” must be practiced in the name of a collec-tivity. However, while prosecuting for genocidal rape may well be justi-fied for reasons of justice for individual victims, it may serve to reinforce and reproduce the message of collective ethno-national opposition that produced the rapes in the first place, thus making reconciliation unlikely. The showy display of victims as proof of the need for protection of their co-nationals has been a major tool in the promotion of nationalisms in post-communist Europe (Verdery 1999) and especially in the former Yugoslavia, where the sudden rediscovery of mass graves of World War II victims was used by Serb, Croat and Slovene nationalists to mobilize support for their separate (and separatist) causes (Denich 1994, Hayden 1995). Verdery (1999: 115) has argued strongly that dead bodies are powerful

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vehicles for symbolic politics because of their connections to “matters of accountability, personal grief, victimization and suffering;” but raped bod-ies, as Žarkov shows, are at least as powerful in this regard. Since interna-tional tribunals must hear evidence and make findings of fact in order to decide cases, they actually specialize in publicizing stories that are likely to raise emotions hostile to the perpetrators and to the collective in whose name they presumably acted. Thus prosecuting rape as a war crime may undermine the supposed goal of Tribunals such as the ICTY to bring about reconciliation.

What may be more troublesome, however, is the problem of assign-ing responsibility for mass rape. If the actual rapists are enacting cultural scripts that existed before the events concerned, but that became mani-fested only in the new context of partition, rather than coexistence, it is not at all probable that they are following orders to rape. Indeed, when one compares sexual violence in Bosnia in 1992 with that in Punjab in 1947, the parallels are striking, yet few suggest that rape was ordered by the political leaderships of Pakistan or of India in 1947.26

Terribly ironically, the prosecution of rape as a war crime may deprive women of agency. After the mass rape in Punjab, Indian law classified all women who remained in their natal villages instead of transferring to their new “homelands” as “abductees,” whose recovery was necessary for national honor (Das 1995; cf. Butalia 1993). Veena Das has argued (1995) that this classification deprived these women, many of whom had actu-ally been incorporated into new families, of choice in deciding their own fates.27 It is clear from the accounts collected by Butalia (1993) that the lives of many of these women had actually been spared because men who

26 The concept of command responsibility would seem to offer a way out of this dilemma, since it punishes failure to stop and to prevent criminal acts by subordinates. One problem, though, is the perception of the politicization of the process, since the pros-ecution of political leaders is inevitably a political act. This problem is even more difficult in the former Yugoslavia, where the international community has de facto accepted the principle of the ethnic state that makes “ethnic cleansing” such a logical solution (see Hayden 1996a) and rape thus such a likely possibility, at least in societies in which the cultural presumption is that sexual violence against women dishonors their communi-ties. Further, the idea that war crimes trials punish individuals, rather than collectives, vanishes under the concept of command responsibility, because the individual is tried for the actions of others, whether or not he knew of them.

27 Das does not make the point, but it is possible that the marriage practices general in Punjab in 1947 created an atmosphere in which young women were actually precondi-tioned towards some of the trauma that they faced in being incorporated into new families after partition. North India marriage practices usually involved village exogamy, and the isolated position of the North Indian bride is legendary in anthropology.

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knew them were willing to marry them, and that after months or years the women themselves would have preferred to remain with their new hus-bands and families. Tragically for them, the Indian state used the occur-rence of mass rape to vitiate the choices of such women, thus turning what would otherwise have been marriage into rape. Thus the rhetoric of mass rape was used to deny choices to women whose bodies were, in Žarkov’s terms, still claimed as the territory of the newly constituted state whose territory they did not wish to enter.

There are indications that at least some women in Bosnia see the inter-national focus on rape as depriving them of personality and agency.28 One is the withdrawal by “Jane Doe II,” one of the nominal plaintiffs, from a lawsuit against Radovan Karadžić that had been mounted by the Yale Law Clinic and the Center for Constitutional Rights. As circulated on various internet services in May 1997, the woman bitterly attacked the two organi-zations bringing the suit for having exploited her suffering and the murder of her mother for their own benefit; of having ignored the victims and altered their stories; of having endangered the security of those women who had talked with them. Interestingly, Jane Doe II supported bring-ing legal actions against those who committed sexual crimes in Bosnia, but she found it important that Bosnian women themselves initiated such actions “so that, when we do appear in court, we can ourselves explain to the world what happened to us.”

The other example stems from a conference on Bosnia held in early 1993, in New York, on the topic of “The Path Beyond Genocide: Construct-ing Civil Society in Bosnia – Herzegovina and the Former Yugoslavia.” When the topic of rapes was raised, a Bosnian Muslim woman participant, who had otherwise been silent at the conference, said that as a Bosnian woman, she felt that the international emphasis on rape was inappropri-ate, because all Bosnian women were victims: they lost their homes, their sons, their husbands, their jobs, their lives, and whether they had been sexually assaulted or not was not really the most important problem. Her interjection was met with silence. Who was she, after all, to pronounce on such issues?

28 Apart from the apocryphal fax to a women’s organization in Zagreb by a major news organization in 1993: “Is there anyone there who has been raped and speaks English and can give an interview?”

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It is this deprival of agency that returns us to the interplay between the concept of consent and the presumption of violence that now dominates thinking on rape, particularly in the context of mass rape in an ethnic or nationalist conflict. Sexual assault is violent, and mass rape is group vio-lence, but classifying it as “genocide” accepts the premises of the rapists themselves, and thus turns consensual sex, even marriage into rape. There may well be theoretical justifications for doing so, but they lead to the determination that women themselves lack the capacity to make crucial decisions, because they remain the real property (territory) of the group to which they have been classified.

There is a fascinating congruence in this regard between the opinions of social workers in Punjab in 1947 and those of human rights investiga-tors in Rwanda in 1996. In 1947, social workers in Punjab asserted that the resistance of some “abducted” women to “recovery” to their natal families was based on false consciousness, and that the social workers were the ones who knew the best interests of these women. Das (1995: 72) quotes one social worker as follows:

Since these women are married and settled here and have adjusted them-selves to the new environment and to their new relatives . . . [and] are refus-ing to go back . . . is it desirable that we should force them to go back? . . . . May I ask, are they really happy? Is the reconciliation true? Can there be a permanent reconciliation in such cases? Is it not out of helplessness, there being no alternative, that the woman consents to being forced to enter into that sort of alliance with a person who is no more than the person who is a murderer of her very husband, her very father, or her very brother?

Das (1995: 73) finds this position to be “an alliance, between the state and social work as a profession, which silences the voices of victims . . . by an abstract concern with justice, the punishment of the guilty, and protec-tion of the honor of the nation.” Compare the social worker quoted by Das with the view of Human Rights Watch/Africa on what it calls “individual sex slavery: forced ‘marriage’ ” (Nowrojee 1996: 56–62). Here, as in Punjab, one reads of cases in which men save individual women from mass rape and often from death, although in the cases reported by Nowrojee some of the men were brutal, while others were not. The rhetoric used by Human Rights Watch is almost identical to that of the political parties in India and Pakistan in 1947 which ignored the actual position of women and even their desires in order to satisfy national honor (Das 1995, Menon and Bhasin 1993, Butalia 1993). All cases were classed as “abduction” and “rape,” not real marriage.

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A number of women have continued to live with the militiamen who abducted, raped and held them during the genocide. Unfortunately, many rape survivors who now lack family, skills and resources consider such arrangements their best hope for economic and physical security. (Nowrojee 1996: 61, emphasis added)

One is not sure here what is most unfortunate, that the women in ques-tion lack family, skills and resources or that they consider that their best hope lies with staying with the men who protected them during the mas-sacres. This assessment might be compared with the marital strategizing of Hutu women refugees from an earlier genocide in Rwanda, in Tanzania in the 1980s (Malkki 1995: 175–183). While it is clear that these women, too, were often deprived of family, skills and resources, they did in fact consider marriage as a viable option, and one doubts that Human Rights Watch would find these marriages quite so “forced” and “unfortunate.”29

But the Hutu women in Tanzania, it might be countered, were not mar-rying their rapists. This is true enough, but then we do not really know whether there were women in Rwanda who, like many in Punjab in 1947–48, came to believe that their best course of action was to stay with men who had protected them and who, while certainly having sex with them, were doing so in the role that the women themselves regarded as husbands rather than as rapists. Indeed, the rhetorical stance taken by social workers in Punjab and by Human Rights Watch, assuming that all men who married victimized women were themselves rapists and per-haps murderers, provides support for the argument that accusations of genocide presume collective guilt.

It would be useful to have evidence of cases in which men married women who were threatened with rape in order to save them, having not, themselves, raped the woman in question or threatened to do so. The pre-sumption of violence may skew the collection of data, however, as human

29 One reviewer has suggested that this section lacks data on the experience of marital strategizing, but I am not sure how relevant such data would be. The very concept of marriage systems implies strategizing, a staple topic of ethnographies and of high theory (e.g. Bourdieu 1977), although usually the strategizing analyzed is that of representatives of kin groups rather than of the individuals to be married. It may well be that coercion in marriage is a violation of Art. 16 of the Universal Declaration of Human Rights (“Marriage shall be entered into only with the free and full consent of the intending spouses”) but the concept of “consent” in systems of arranged marriages is problematic. The negotiated, hence strategic, nature of South Asian marriage is well known. In rural Bosnia, there was strong opposition to ethnically mixed marriages into the late 1980s, at least, though hetero-geneous unions were relatively common in Bosnian cities (Bringa 1995: 149–153). In both India and rural Bosnia, freedom of marital choice was hardly unconstrained.

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rights workers in the 1990s, driven by many of the same abstract con-cerns with justice and the punishment of the guilty as were social workers in Punjab in 1947, publish only those cases in which saviors were brutal or present all cases in ways that presume brutality. In fact, the Akayesu equation of “coercion” with violence implies that marriage under circum-stances of mass sexual assault against women of the bride’s community is legally sexual violence even when the marriage saves a woman’s life and offers her a way to reconstruct her life.

The presumptive classification of heterogeneous marriages as “rape” reflects the hostility towards such marriages that is felt by many in parti-tioned societies.30 In the former Yugoslavia, pressure on “mixed” marriages began when the federal state entered the period of liminality that led to its breakup, in 1991.31 In a move revealing of the coming partition, Serbs married to Croatian women and living in the Croatian town of Zadar peti-tioned for the resignation of Serbian President Milošević, whose politics threatened them and their families.32 Research in Zagreb in 1992 showed a decline in the willingness of Croats to marry non-Croats and a rise in divorces in “mixed” marriages.33 By 1994, leading Islamic figures in Bosnia were saying that mixed marriage was worse than rape (Mujki 1994, cited in Helms n.d.).34 In this manner the focus on the violence of rape turns into the negation of consent to non-violent sexual relations, including marriage, depriving women (and men) of agency. Analytically, the focus on rape thus leads to the elimination of rape avoidance as a category.

Conclusion

When rape avoidance is put into the analysis of ethnic or nationalist con-flict the meaning of mass rape itself becomes more clear: it is a tool used to partition permanently an already consciously heterogeneous popula-tion at the time when the territory in which these people(s) live is being divided physically. Thus mass rape is actually a corollary of the liminality

30 Of course, intermarriage may be viewed with suspicion in many circumstances even before partition, as in India. In Bosnia, interethnic marriages were not uncommon in the cities but were uncommon in the countryside, which is where most people lived (see Bringa 1995: 149–154).

31  See Danas 11 March 1991: 30–33, Borba 30 Sept. 1991: 11.32 Vjesnik, 20 March 1991: 3.33 Feral Tribune, 11 January 1994.34 See also Internet Naša Borba, 18 March 1997 and 23 March 1997.

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of the state when a heterogeneous territory is being sundered into homog-enous parts. Looked at in this way, a number of assumptions about mass rape are brought into question, such as that rapists are driven by hatred. To the contrary, many rapists themselves are conflicted, but their acts are meant to induce hatred in the victims.

The implications of these findings are disturbing. First, it is unlikely that prosecuting rapists after the fact will prevent future occurrences of mass rape during partition. Further, the post-Bosnia linkage of mass rape with genocide seems to accept the very premises of the rapists and thus to render future cohabitation of the peoples in question less likely. Finally, the understandable humanistic concern with the violence of rape leads investigators not only to ignore instances of rape avoidance, but even to be very skeptical of consensual sexual relationships and even of marriages between members of the groups in question. In this way, a focus on rape, violence, and putative justice may frequently deny agency to women vic-tims themselves, thus denying to many women, and to many men, the chance to reconstruct their lives after their countries and communities have been sundered by ethno-national violence.

Acknowledgments

Revision of paper prepared for the conference on “Vocabularies of Identity in Russia and Eastern Europe,” University of Michigan, Ann Arbor, MI, April 3–4 1998. Colleagues who have read an earlier draft and commented on it include Joseph Alter, Rada Drezgić, Eugene Hammel, Elissa Helms, Dennison Rusinow and Dubravka Žarkov, and four anonymous reviews for American Anthropologist. Of course, none of them bears the least responsibility for the contents of this paper. I would also like to acknowl-edge an intellectual debt to Veena Das, who noted the complete absence of consideration of gender factors in her comments on the first version of an earlier article on violence in Yugoslavia (Hayden 1996). However, she least of all bears any responsibility for the views expressed here.

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and its Aftermath. New York: Human Rights Watch/ Africa.Palmer, Craig (1989). Is Rape a Cultural Universal? A Re-Examination of the Ethnographic

Data. Ethnology 28: 1–16.Russell, Diana (1990). Rape in Marriage (2d ed). Bloomington: Indiana University Press.Sanday, Peggy Reeves (1981). The Socio-Cultural Context of Rape: A Cross-Cultural Study.

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PART III

HUMANITARIAN HYPOCRISY

CHAPTER NINE

HUMAN RIGHTS ACTIVISTS AND THE CIVIL WAR IN YUGOSLAVIA: THE QUESTIONABLE MORALITY OF LIBERAL ABSOLUTISM

In the mid-1980s, Amnesty International, Helsinki Watch, the U.S. Con-gress and other “human rights watchdogs” were strongly critical of the Yugoslav government’s suppression of the free speech of various national-ists who urged the disintegration of the country. At that time, the Yugo-slav government’s position was that in the specific context of Yugoslavia, the views espoused by these “dissidents” could be used to destabilize the state and bring on a civil war. With the experience of the ferocious civil war of 1941–45 still in living memory, the government argued that a new civil war would be catastrophic and that they had a duty to prevent it. However, Amnesty International, Helsinki Watch and the U.S. Congress argued from the moral high ground that all speech that does not call for violence must be permitted.

From the vantage point of 1992, the morality of the position of these “human rights” advocates is less than clear. On the one hand, Amnesty International and the others got what they wanted; by 1989/90, the nation-alists were no longer repressed, and some of them were even victors in elections in 1990. However, by 1992, the fears of the Yugoslav governments of the 1980s were proved justified; the policies of these victorious nation-alist extremists had produced the disintegration of the federal state and driven the country into a ghastly civil war, with tens of thousands killed in the first year, more than that wounded, more than a million forced from their homes, and virtually the entire population impoverished. These developments constitute wholesale violations of human rights; most of these people have not been combatants, but rather have been victimized solely because of their ethno-national status. Further, Helsinki Watch and Amnesty International are discovering to their dismay that former “pris-oners of conscience” and other human rights celebrities of the 1980s are using their elected positions to oppress political opponents (e.g., Croatia’s President Franjo Tudjman and State Prosecutor Vladimir Šeks),1 or have

1 Criminal charges were filed by Šeks’ office against the satirical writer Tanja Torbarina for “defaming the president” in a satirical piece based on Tudjman’s shift of residency

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organized extremist (para-) military forces which are heavily involved in murdering and expelling members of other ethnic groups (e.g. Serbia’s Vojislav Šešelj and Croatia’s Dobroslav Paraga).2

For human rights advocates, Yugoslavia thus presents a disquieting picture: the assessment of the “repressive” communist government of the 1980s was accurate, while some of the most celebrated of the human rights victims of that time, freed from their “oppression” in accordance with “internationally accepted human rights standards,” are among the prime actors in authoritarian regimes3 and the war that these regimes have provoked and supported. One might say with some bitterness that the “human rights” groups should be proud of the Yugoslav war, because taking the steps that they advocated helped bring it about.4 From a human rights point of view, in fact, we might long for the bad old days of the

into a villa formerly used by Tito. Charges have also been prepared against other journal-ists for criticizing the government. At least one of the leaders of the Serbian minority in Croatia, Dr. Milorad Pupovac, has been threatened with prosecution for “spreading false information” and “disturbing the peace” for statements he made to the press during a visit to Austria. Helsinki Watch has expressed its concern to the Croatian government over these charges; but HW’s action was noted only in one Croatian newspaper which itself has been attacked by Tudjman’s government (see Borba [Belgrade], 26 May 1992: 2 and 27 May 1992: 30).

2 Šešelj, leader of the ultranationalist Serbian Radical Party and a member of the Ser-bian parliament, leads a private army that has taken part in the “ethnic cleansing” of parts of Croatia that are under Serbian control. In March 1992, Šešelj proposed in the Serbian Parliament that the ethnic Croatian minority in Serbia, which has lived there for gen-erations, should be expelled (Borba, April 3 1992: 10). A few days later he extended this proposed pogrom to other non-Serbs resident in Serbia. Paraga, leader of the neo-fascist “Croatian Party of Right,” also controls a private army, which has been heavily involved in attacks against Serbs and Muslims in Bosnia – Herzegovina, and Serbs in Croatia. With this in mind, one is stunned to find that the United States Senate, on August 4, 1989, passed a resolution “supporting the efforts of Dobroslav Paraga to bring about increased respect for human rights in Yugoslavia” (Congressional Record, Vol. 135, No. 109, p. S 10163).

3 The authoritarian character of these regimes can be seen in the absolute control over the major broadcast and print media in the republics of Serbia, Croatia and to a somewhat lesser extent Slovenia under the nationalist governments freely elected in those republics in 1990. Ironically, the press in these “democratic” regimes has been far less free than it had been for at least the last decade under communism (see Robert M. Hayden, “Yugoslavia: Politics and the Media,” Radio Free Europe Report on Eastern Europe, Dec. 6 1991: 17–26).

4 In an exercise of either stunning naiveté or blind stupidity, or perhaps simply egre-gious arrogance, Jeri Laber, the Executive Director of Helsinki Watch, had urged in a New York Times op-ed piece in October 1990 that Yugoslavia be broken up because it violated human rights. Laber gave no thought in the article to the probable bloody consequences of the disintegration of the country, though they were pointed out by the present author in a letter published by the Times three weeks after the appearance of Laber’s original article.

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1980s, when the Yugoslav government oppressed a few hundred national-ists a year, as far better than the present nationalist carnage.5

It is not my intention to attack the general enterprise of protecting human rights. However, I think that the failure of human rights advocates to either anticipate or else take seriously the dangers of the speech for which they demanded freedom raises important questions concerning the proper scope of “human rights” criticisms and the standards which human rights organizations should apply. The apparently impeccable morality of the human rights criticisms of the Yugoslav governments of the 1980s actually constituted a refusal to recognize the possible risks of following the course thereby demanded, even when those risks were pointed out by a government charged with maintaining peace in a multi-ethnic society. In what follows, I look at some of the issues that Helsinki Watch et al. ignored in regard to free speech for nationalist extremists in Yugoslavia in the 1980s, in the hope of provoking discussions that will permit greater realism in the advocation of human rights principles. My doing so may be distasteful for those who regard any qualification of human rights principles as impermissible. However, that extremist position makes human rights advocates open to the charge that they are willing to risk the welfare of millions rather than examine their own premises.

Tacit Calls for Violence

As a starting point, we should recognize that there are actually very few adherents to the principle of absolute freedom of all speech at all times. The famous American constitutional dictum was that freedom of speech would not include “the right falsely to call ‘fire’ in a crowded theater,” and, more concretely, that dissemination of information such as the sail-ing of troop ships during wartime could be prohibited. Human rights

5 Even those shocked by the scope of the present disaster might assert that some unpleasantness was bound to follow the breakup of Yugoslavia, but that, as Lenin once said, “you can’t make an omelet without breaking eggs,” and that the new democratic future is bright. In fact, however, the new regimes in Croatia, Slovenia, Serbia and to a lesser extent Macedonia are busy building constitutional and legal systems designed to institutionalize discrimination against the local minorities (see Robert Hayden, “Consti-tutional Nationalism in the Formerly Yugoslav Republics,” New Perspectives Quarterly, forthcoming). Americans might get a hint of the flavor of these systems by imagining an amendment to the U.S. Constitution to make the Preamble read “We the White, Protes-tant people of the United States . . .” and a set of laws in regard to minority rights that was passed and administered by a government headed by David Duke.

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advocates tend to draw the line at calls for violence and will not defend such speech. Thus, Amnesty International’s descriptions of “prisoners of conscience” often include the statement that the person “has not advo-cated violence.”

In the case of Yugoslavia in the 1980s, “dissidents” such as Tudjman, Šeks, Šešelj and Paraga were expressly said to have not advocated vio-lence. On the other hand, the positions espoused by these men all called for the disintegration of the Yugoslav federation into separate states, each defined by the ethnicity of the largest national group within it. Further, the borders of these putative states were defined by the several nationalist advocates in the broadest possible way, each to include areas with large minorities or even local majorities of people not members of the major-ity meant to define the state. These claims overlapped, so that different nationalist groups mounted competing claims to particular territories within Yugoslavia.

In these circumstances, disclaimers of violence in attaining the ethni-cally pure nation-state were pious nonsense, probably meant primarily to legitimate their speakers in international human-rights circles – and clearly quite successful in that regard. In fact, none of these states could be attained without the high risk, to the point of virtual certainty, of violence, for several reasons:

1.  Overlapping territorial claims: there is no empirical test for sorting out the various national claims to territory, since some are based on his-torical principles (e.g., the Serb claim to Kosovo or Croat claim to Bos-nia) while others are based on the current presence of local majorities in a disputed region (the Albanian claim to Kosovo or the Serb claim to some areas of Croatia). As these examples, show, the same group might make one type of claim in regard to one area and another type in regard to a different area. The possibility of recourse to that well-established European mechanism for deciding such questions, military conflict, was thus always high.

2.  Resistance from threatened minorities: unfortunately, the nationalist claim to statehood was not premised on the creation of a democratic polity of equal citizens, but rather on one in which the majority (eth-nic) nation was sovereign, thus relegating those not members of that nation to second-class citizenship at best (e.g., like Arab citizens of Israel) or to being scapegoat “enemies” of the dominant nation and its state (e.g., like Jews in Hitler’s Germany). For understandable reasons, members of groups that would suddenly find themselves at such a dis-advantage were always likely to resist the formation of the new state,

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since it would be based on the premise that they were foreign to the bodies politic and social.

It might be asserted that the principle of inviolability of borders enunci-ated by the Council on Security and Cooperation in Europe might solve this problem of irredentism by rendering the question of border changes illegitimate. However, in the case of Yugoslavia, acceptance of that prin-ciple would have rendered the nationalist causes themselves illegitimate, since the borders of the Yugoslav federation would have been inviolate. With the recognition of states seceding from Yugoslavia the principle of inviolability of borders was vitiated, since it was de facto recognized that borders could, indeed, be changed by secession.6 In that case, there is no principled reason why areas with local majorities who are minorities in the larger context of a new state should not themselves be able to secede. Since this process could become one of almost infinite regression and would be resisted at each level by the entity from which secession was proclaimed, the chance for violent resolution of this kind of conflict was also always inherent in the nationalist claims for independence.

In Yugoslavia in the 1980s, then, demands for the disintegration of the federal state and the establishment of independent nation states were tacit calls for violence, since that goal could not be achieved without it. The failure of human rights activists to recognize this practical political situation constituted either wishful thinking or perhaps the elevation of a pious principle into dogma, since recognizing it would have meant accepting that speech in these circumstances could, indeed, justifiably be repressed. Yet not recognizing the realities of the Yugoslav ethnic tangle meant accepting the risks of civil war. Whether it was proper for non-governmental “human rights” organizations to advocate actions that carried a strong risk of inciting civil war is an uncomfortable question but, I think, an extremely important one.

6 In this context, it has not been widely recognized that the international stress on the inviolability of republican borders actually created borders that for most practical pur-poses had not existed in the past. The internal Yugoslav borders had been about as visible as those between American states, with administrative and jurisdictional consequences but little direct impact on daily life. The new international frontiers are very different, however, since they create physical barriers to the movement of local populations which had hitherto passed freely. The true meaning of treating republican borders as interna-tional frontiers was exemplified by Slovenia’s action, in the first few days after proclaiming its independence, in building customs barriers on its border with its fellow secessionist republic, Croatia.

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Removed from the immediate context of Yugoslavia, the wider ques-tion may be phrased as follows: is the achievement of a particular political demand likely to necessitate violence and the abuse of human rights? If so, that demand constitutes a tacit call for violence, even when it ostensi-bly is to be achieved by non-violent means. In such cases, human rights advocates who support the enunciation of the political demand should do so with open acknowledgement of the potential risks involved, rather than accepting at face value the assertion that the person taking the posi-tion “does not advocate violence.”

Freedom for Fascist Speech

The extreme nationalist speech that the Yugoslav state censored in the 1980s was in fact a close cousin of the central European fascism of the 1930s. This ideology sees mechanical connections between biological type (“race”), language and culture, which views some peoples as inherently inferior because of these inherent qualities, and bases political participa-tion, even life itself, on them. In its mildest (?) forms, this ideology envi-sions “ethnically pure” nation-states as the “natural” and inevitable form of macro social organization. Croatian President Franjo Tudjman’s Bespuća povijesne zbiljnosti [The Wasteland of Historical Reality] (1989), written while he was still a “dissident from communism,” is a treatise expound-ing this view. In this scheme, efforts to achieve such a “pure” society are inevitable, as are their regrettable excesses of forcible conversion, expul-sion and mass murder. Thus Tudjman writes:

throughout history there have always been attempts at a “final solution” for foreign and undesirable racial-ethnic or religious groups through expulsion, extermination, and conversion to the “true religion” . . . . It is a vain task to attempt to ascertain the rise of all or some forms of genocidal activity in only some historical period. Since time immemorial, they [genocidal practices] have always existed in one or another form, with similar consequences in regard to their own place and time, regardless of their differences in propor-tion or origin . . . . Reasoning that would assign genocidal inclinations, rea-soning or goals to only some nations or racial-ethnic communities, to only some cultural-civilizational spheres and social-revolutionary movements, or to only some individual religions and ideologies is completely mistaken and beyond any thought of historical reality.7

7 F. Tudjman, Bespuća povijesne zbiljnosti (Zagreb, 1989), p. 166.

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This position is “mild” in that it views only purification within states as inevitable, and does not envision the necessity for permanent conflict, to the point of extermination, between nations, as did Hitler.

The truth of a position like Tudjman’s is brought into question by the successful functioning of multi-ethnic or multi-national states (e.g., Swit-zerland or India) and the existence of monolingual states with different religions (e.g. Germany or Hungary) even as some states have disintegrated on the basis of religion despite sharing a major language (the partition of India in 1947; the partition of Yugoslavia in 1991–92).8 In the latter cases, there was clearly no great biological difference between the populations and much shared culture, thus giving rise to the concept of “communal-ism” as distinct from “nationalism.” However, the empirical shakiness of positions like Tudjman’s does not lower their political impact. Such myths of nation were dominant in central Europe in the 1930s and 1940s, and are being resurrected in the 1990s by neo-fascist political parties in France and Germany. In those countries, after relatively long experiences with democratic institutions, repression of this kind of hate-based politics would presumably be inappropriate, perhaps a violation of human rights. However, in a country like Yugoslavia, where there has been no recent experience with democratic institutions (if, indeed, any such experience at all) but where fascism was practiced (the “Independent State of Croa-tia,” 1941–45), the social and political resources to counter fascist politics were lacking, and the dangers of neo-fascists seizing power were high. In this context, insistence on the “right” to promulgate chauvinistic national-ism is akin to insisting on the right to create hysteria over a disease that does not in fact exist, and then call for the elimination of those classes of people said to carry it.

I would argue, then, that it is necessary to consider the context in which hate-based politics are being promulgated in order to determine whether those who promote them deserve the protection of human-rights advocates. Obviously, even in situations in which such speech may be pro-hibited, those who would promulgate it may not be physically abused. On

8 Despite the general recognition now that Hindi and Urdu are separate languages, most linguists regard them as dialects of the same language (called Hindustani before partition), as did Pandit Nehru. In a similar fashion, Serbian and Croatian are clearly dia-lects of the same language (called, until 1991, Serbo-Croatian or Croato-Serbian), divided by scripts associated with different religious communities.

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the other hand, some deprivation of the liberty of those who urge policies that carry a serious risk of inciting civil war may be justified.

The Necessity of Evaluation and Choice

To argue that even speech that ostensibly does not call for violence may, in some circumstances, be suppressed in order to avoid a massive tragedy such as civil war may seem heretical to human rights activists. I am well aware of the dangers inherent in qualifying human rights principles, since any tyrant is likely to make plausible arguments as to why particular speech in the specific context of his or her own dictatorship is dangerous. Yet to ignore the context of political utterances leaves “human rights” activists open to the charge of being willing to risk the lives of many thousands and the well-being of millions in order to avoid compromising their principles. This last form of liberal absolutism seems to have been the position taken by Helsinki Watch, Amnesty International and other human rights groups in their criticisms of Yugoslavia in the 1980s.

This absolutist position is probably vulnerable at the extremes, how-ever. For example, knowing what we know now, few would actually argue that limits on Hitler’s ability to speak publicly would not have been legiti-mate. The problem may be one of mechanisms: granted that hindsight informs our view of Hitler, how do we find mechanisms that will permit screening of truly dangerous speech from that which is merely trouble-some, distasteful or bizarre? In this regard, it must be admitted that the dangers of espousing particular views vary, in fact, with the contexts in which they might be offered. In order to estimate the potential dangers of particular criticisms of an established order, it is necessary to look care-fully at what position is being advanced and at what the potential con-sequences of accepting it might be. If a “dissident’s”9 position is indeed a tacit call to violence, as defined above, then I think that a strong case can be made for the non-violent suppression of that speech.

Of course, evaluation of challenged speech is precisely what human rights organizations wish to avoid, contending that they are supporting only the right to free speech, not the truth of particular positions. In fact, however, the attempt to avoid evaluating the content and context of polit-

9 It is fascinating and disturbing to note that “dissidents” do not exist under authoritar-ian regimes such as that of Croatia. Apparently, one can be a “dissident” only from com-munism, while an opponent of nationalism can be only a traitor.

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ical speech is really an abdication of moral responsibility masquerading as universal morality. For those who doubt this, Yugoslavia stands as a trag-edy, and travesty, of human rights: the demands of human rights activists of the 1980s were met, thus freeing the political forces that brought on the civil war of 1991–92, a greater violation of human rights than any of the actions of the communist government in the 1980s.

CHAPTER TEN

HUMANRIGHTSISM: FROM MORAL CRITIQUE OF VIOLENCE TO CRUSADE FOR MORAL VIOLENCE

Justice is the right to do whatever we think must be done, and therefore justice can be anything.

Meša Selimović, Death and the Dervish

The last year of the second millennium has been called “the beginning of a new era for the human rights movement.”1 Human Rights Watch (HRW), one of the largest of such organizations, introduced its Decem-ber 1999 World Report 2000 by noting a decrease in the importance of sovereignty, because courts are willing to indict leaders, and because of the threat of military intervention against regimes that commit crimes against humanity. HRW cites the International Criminal Tribunals for the former Yugoslavia and for Rwanda, the incipient International Criminal Court, prosecutions of assorted Yugoslavs and Rwandans by Austrian, Belgian, French, German and Swiss courts, and a Spanish judge’s indict-ment of former Chilean dictator Pinochet. It then mentions the NATO military actions against Yugoslavia and the international intervention in East Timor. It concludes that all of this “foretells an era in which the defense of human rights moves can move from a paradigm of pressure based on international human rights law to one of law enforcement.”2 This paradigm shift includes a remarkable transformation of the capabili-ties of “human rights organizations,” from persuasion to prosecution:

Until now . . . human rights organizations could shame abusive governments. They could galvanize diplomatic and economic pressure. They could invoke international human rights standards. But rarely could they trigger prosecu-tion of tyrants or count on governments to use their police powers to enforce human rights law. Slowly, this appears to be changing.3

HRW is not the only human rights organization that calls for governments to use their “police powers” to intervene in other states. Bernard Kouchner,

1 Human Rights Watch, World Report 2000: Introduction (www.hrw.org/wr2k/Front .htm.)

2 Id.3 Id.

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U.N. Governor of Kosovo after NATO’s occupation of the place but oth-erwise one of the founders of Doctors without Borders, the organization that won the Nobel Peace prize in 1999, is another: “a new morality can be codified in the ‘right to intervention’ against abuses of national sov-ereignty . . . . In a world aflame after the Cold War, we need to establish a forward-looking right of the world community to actively interfere in the affairs of sovereign nations to prevent an explosion of human rights violations.”4 To Kouchner, this “right to intervene” is not “human rights imperialism” because

everywhere, human rights are human rights. Freedom is freedom. Suffer-ing is suffering. Oppression is oppression. If a Muslim woman in the Sudan opposes painful clitoral excision, or if a Chinese woman opposes the binding of her feet, her rights are being violated. She needs protection . . . . When a patient is suffering and desires care, he or she has the right to receive it. This principle also holds for human rights.5

While one might question the knowledge and seriousness of a 1999 writer who calls for protection against a practice last reported in the 1930s, Chi-nese footbinding, Kouchner’s personal elevation to administrative office as well as his organization’s Nobel Peace Prize indicate that the NATO powers, at least, take him seriously. Certainly his sentiments echo those of Vaclav Havel, that “human beings are more important than the state . . . . the idol of state sovereignty must inevitably dissolve” and that NATO’s war against Yugoslavia “places human rights above the rights of the state,” thus demonstrating that “human rights are indivisible and that if injustice is done to one, it is done to all.”6

The interlinking rhetorics of law, justice and morality (along with their opposites of crime and injustice) underpin such calls for humanitarian intervention, and the image of justice via international tribunals is domi-nant. HRW put what it viewed as “significant progress towards an inter-national system of justice” to prosecute crimes against humanity at the head of its discussion of 1999 achievements,7 and is a strong proponent of the International Criminal Court, which the United States government opposes. The link between tribunals and military intervention is explicit: “like the use of military intervention, the emergence of an international

4 Los Angeles Times, Oct. 18, 1999.5 Id.6 V. Havel, “Kosovo and the End of the Nation-State,” New York Review 10 June 1999 at

4, 6.7 HRW World Report 2000 at 1.

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system of justice signals that sovereignty is no longer the barrier it once was to actions against crimes against humanity.”8 HRW claims that it and other human rights organizations have been key catalysts in producing an evolution of international public morality, so that “the people of the world today are unwilling to tolerate severe human rights abuses and insistent that something be done to stop them.9 They do this “by carefully investi-gating abuses and holding them up to public scrutiny under international standards.”

Assertions of devotion to justice, however, are common in the world – probably every political actor makes public claims to be on the side of justice and to uphold morality. HRW and other human rights organiza-tions that call for military intervention are acting as classic political fig-ures, demanding the application of massive violence to those whom they define as immoral. As such, their own actions and the actions of those whom they support should be exposed to the same scrutiny that they claim to apply to others.

I want, therefore, to look closely at one of the most important of the elements of the new international legal order which human rights activ-ists promote, the International Criminal Tribunal for the Former Yugo-slavia (ICTY, or “the Tribunal”). In brief, this article argues that the ICTY delivers a “justice” that is biased, with prosecutorial decisions based on the personal and national characteristics of the accused rather than on what available evidence indicates that he10 has done. Evidence of this bias is found in the failure to prosecute NATO personnel for acts that are com-parable to those of people already indicted, and of failure to prosecute NATO personnel for prima facie war crimes. This pattern of politically driven prosecution is accompanied by the use of the Tribunal as a tool for those western countries that support it, and especially the United States, to pursue political goals in the Balkans: put bluntly, the Tribunal pros-ecutes only those whom the Americans want prosecuted, and the United States government threatens prosecution by the supposedly independent ICTY in order to obtain compliance from political actors in the Balkans. Further, judicial decisions by the ICTY render it extremely difficult if not impossible for an accused to obtain a fair trial, while the Tribunal has

8 Id. at 6.9 Id. at 9–10.

10 The gendered pronoun is intentional – no women have yet been charged by the ICTY.

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also shown a lack of interest in the investigation of potential prosecutorial misconduct.

An expose of the ICTY has its own intrinsic merits, but there is a wider point as well. The materials that are cited in this paper are almost all from readily accessible sources, and the facts discussed should be well known. Yet the arguments that I make, if not exactly unprecedented, cer-tainly are not those commonly taken in regard to the ICTY by those who claim to be human rights advocates. Following discussion of the ICTY’s actions, my focus shifts to consideration of why NATO actions that so clearly violate human rights, and Tribunal actions that so clearly violate fundamental fairness towards defendants, are not the subject of much concern by those who profess to support human rights. The answer is seen in the transformation of human rights concepts, from protesting the application of state violence on non-violent dissidents to demanding the application of massive violence on states deemed to be inferior. I see this transformation as being from human rights to humanrightsism, with the new ism, like most isms, a repudiation in practice of the principles that it supposedly embodies. The ICTY is a particularly striking manifestation of humanrightsism because of its own betrayal of the high principles that are routinely invoked to justify it.

Selective Prosecution 1: Cluster Bombs and War Crimes

In July 1995, Milan Martić, President of the Republika Srpska Krajina (the self-proclaimed Serb “Republic” in Croatia), was indicted before the ICTY for violations of the laws and customs of war, in that he had ordered a missile attack on the city of Zagreb in retaliation for the successful Croa-tian offensive of May, 1995, which had driven Serbs from Slavonija.11 What is interesting about this indictment is that what made the bombardment a war crime was that it was carried out by missiles that had been fitted with cluster bombs warheads: “warheads containing 288 bomblets, all of which in turn have 400 small steel balls, which are scattered, along with bomblet fragments, on a lethal radius of ten metres . . . . It is used for soft targets, that is troops on the ground and vehicles, not for buildings or military

11 Prosecutor of the Tribunal v Milan Martic, indictment, 25 July 1995 (hereafter, Martic indictment) http://www.icty.org/case/martic/4#ind. Note: unless otherwise specified, refer-ences to ICTY documents are to versions on the Tribunal’s web page: www.un.org/icty/.

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installations.”12 Seven civilians were killed and many more wounded, and it was noted in the Rule 61 hearing that one rocket damaged a home for the aged and a children’s hospital.13

The use of cluster bombs is key to the Martić indictment, and the nature of these bombs was described in detail in the Rule 61 hearing. As the indictment put it, the rocket in question could “be fitted with different warheads to accomplish different tasks: either to destroy military targets or to kill people. When the [missile] is fitted with ‘cluster bomb’ . . . it is an anti-personnel weapon designed only to kill people.”14 With this in mind, it is interesting to see the lack of response by the ICTY Prosecutor to NATO’s May 7 attack on the city of Niš, when cluster bombs fell on the market, killing fifteen people, and the city’s main hospital was also hit.15 Over the course of the NATO bombings, nine hospitals were damaged or destroyed and over 300 secondary and elementary schools and other educational institutions were damaged.16 According to the Philadelphia Inquirer, the U.S. Defense Department says that “American planes dropped 1,100 cluster bomb canisters, with 220,000 bomblets, over Kosovo” while “British planes dropped about 500 bombs, each with 147 bomblets.”17 British authorities have acknowledged dropping large numbers of cluster bombs.

One can only wonder why the Prosecutor has not thus far seen NATO’s use of cluster bombs against the city of Niš as being as serious as the Kra-jina Serbs’ use of cluster bomb warheads against the city of Zagreb. It will not do to say that NATO was only aiming at military targets and missed; Martić also said that he was aiming at military targets in Zagreb,18 and, as we have seen, the Prosecutor has already taken the position that cluster bombs are not suitable for use against military targets, but only to kill people. Further, it cannot be argued that the US and British command-ers did not know that they were risking civilian casualties. Martić’s com-ment to a Western reporter that “I am very sorry if civilian targets were hit because our aim was to hit military targets”19 may be compared to any

12 Prosecutor v Milan Martic, ICTY case no. IT-96-11-R61; Rule 61 evidentiary review, 27th February 1996 (hereafter, Martic Rule 61 hearing), at 5. www.un.org/icty/transe11/ 960227IT.txt.

13 Id. at 18.14 Martic indictment, para. 6.15 BBC News Online, May 7, 1999.16 The Times (London), June 13, 1999.17 Philadelphia Inquirer, Nov. 21, 1999, p. 1.18 Martic Rule 61 hearing at 20.19 Martic Rule 61 hearing at 20.

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of a large number of NATO statements about “collateral damage,” includ-ing NATO’s decision on about May 1 to stop even issuing such apologies.20 While the Rule 61 hearing on Martić introduced evidence from interviews that showed that Martić targeted cities intentionally, this is also true of NATO generals, including, specifically, American ones, who have recently complained that French politicians did not permit them to attack even more sites in Yugoslav cities.21

The reason for the Tribunal’s disinterest in NATO’s actions is perhaps found in the views expressed by the official NATO spokesman, Dr. Jamie Shea, on 16 and 17 May 1999, when he was questioned during the daily NATO press conferences about the possibility of NATO liability for war crimes before the ICTY. Dr. Shea said on May 16 that “NATO is the friend of the Tribunal . . . NATO countries are those that have provided the finances to set up the Tribunal, we are among the majority financiers.” He repeated the same message on May 17: NATO Countries “have established these tribunals . . . fund these tribunals and . . . support on a daily basis their activities.” Therefore, he was “certain” that the Prosecutor would only indict “people of Yugoslav nationality.”22

Any remaining doubts on this last point were put to rest in the last week of the second millennium, when several major newspapers reported that the ICTY Prosecutor was investigating the conduct of NATO pilots and their commanders during the Kosovo war,23 including commissioning a preliminary study of NATO’s use of cluster bombs by looking at the his-tory of such weapons and at how they have been used in previous wars.24 While Milan Martić might well wonder why the Prosecutor had not found it necessary to make such a study before indicting him for using cluster warheads, NATO officials would seem to have little to fear. Within days of the first reports of prosecutorial interest in NATO, tribunal officials were reported as saying that the study was a preliminary, internal document that was highly unlikely to lead to indictments or even to be published.25 While the Prosecutor had told the London Observer on December 26 that if the confidential report indicated that NATO broke the Geneva conven-tions she would indict those responsible, on December 30 she issued a

20 “At NATO, a crash course in spin,” MSNBC www service, 1 May 1999.21  BBC News Online, Oct. 22, 1999.22 16 May comments: www.nato.int/kosovo/press/p990516b.htm; 17 May comments:

www.nato.int/kosovo/press/p990517b.htm.23 The Observer (London), Dec. 26, 1999; New York Times Dec. 29, 1999.24 New York Times, Dec. 30, 1999, at A5.25 Id.

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press release saying that “NATO is not under investigation by the Office of the Prosecutor . . . . There is no formal inquiry into the actions of NATO during the conflict.”26 It is, of course, possible that this quick about-face was unrelated to U.S. government denunciations of the reported inquiry into NATO’s actions.27

Selective Prosecution 2: Wanton Destruction of Property

In July 1995, the Prosecutor of the ICTY indicted Radovan Karadžić and Ratko Mladić. One of the sets of acts said to constitute a crime against humanity was “the systematic destruction of Bosnian Muslim and Bosnian Croat homes and businesses. These homes and businesses were singled out and systematically destroyed in areas where hostilities had ceased or had not taken place.”28 They were also indicted for a “grave breach” of the Geneva Conventions because of “extensive destruction of property” that they had “individually and in concert with others planned instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the extensive, wanton and unlawful destruction of Bosnian Muslim and Bosnian Croat property, not justified by military necessity, or knew or had reason to know that subordinates were about to destroy or permit others to destroy the property of Bosnian Muslim or Bosnian Croat civilians or had done so and failed to take necessary and reasonable mea-sures to prevent this destruction or to punish the perpetrators thereof.”29

With these indictments in mind, the enormous economic destruction of Serbia by NATO is relevant. According to the Group 17 economists (who form the core of the Savez za promene, the Serbian opposition coalition most favored by the US, and thus who may be presumed to be fairly reli-able observers), the economic damage caused by the NATO bombings to infrastructure, economic facilities and non-economic civil facilities was slightly over four billion dollars.30 According to the BBC, “at least 30% of the adult population [of Serbia] is unemployed. The economic col-lapse was caused as NATO switched to infrastructure targets as the war

26 ICTY Press Release PR/P.I.S./459-e, 30 December 1999.27 Washington Times, Dec. 30 1999, New York Times Jan. 3 2000, at A6.28 Prosecutor v Radovan Karadzic and Ratko Mladic, Indictment, 25 July 1995 (hereafter,

Karadzic/Mladic indictment), para. 29.29 Id. at para. 41.30 Grupa 17, Završni račun: Ekonomske posledice NATO bomabardovanja (Beograd:

Stubovi kulture, 1999) at 9.

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continued”31 – switched from military targets. In the first month of bomb-ing alone, according to the European movement in Serbia, NATO targets included drug and pharmaceutical plants, tobacco plants and warehouses, printers, and shoe factories,32 while the G17 economists listed as well wood, textile and food industries, among others. There was clearly no “military necessity” for hitting these targets, unless “military necessity” is defined as meaning “anything the destruction of which might have a polit-ical impact.” Neither can it be said that these were “collateral damage.” NATO’s generals and politicians made a very purposeful decision to attack non-military infrastructure early in the war.33 They planned the attacks very carefully and only one proposed target was ever rejected because of concerns about its relation to the military.34 But the Yugoslav military was not the target. NATO generals told the Philadelphia Inquirer on May 21 that “Just focusing on fielded forces is not enough . . . The people have to get to the point that their lights are turned off, their bridges are blocked so they can’t get to work.” Note that the purpose of destroying these bridges was not military; but this was clear when NATO destroyed the bridges in Novi Sad, 500 kilometers from Kosovo, installations that clearly did not make the “effective contribution to military action” in Kosovo that would have rendered them legitimate targets under Art. 52 of Protocol I additional to the 1949 Geneva Conventions.

Aryeh Neier has noted that the U.N. commission that investigated war crimes in Bosnia concluded that “attacking the civilian population is a war crime.”35 There is no question but that, in attacking “infrastructure,” NATO attacked civilians. Judging from the wording of the indictments of Karadžić and Mladić, we should expect indictments against those in NATO who planned and carried out these attacks, and against Bill Clinton and Tony Blair for having failed to take necessary and reasonable mea-sures to prevent this destruction or to punish the perpetrators thereof. However, I would suspect that Jamie Shea’s view, as quoted in the last section, is accurate, and that we should not expect to see the FOT (Friends of the Tribunal) indicted.

31  BBC News Online, Oct. 15, 1999.32 www.msnbc.com/news April 26, 1999.33 See, e.g., Wall Street Journal April 27, 1999, p. 1; BBC News Online 15 October 1999.34 Washington Post, Sept. 20, 1999, at A20.35 Aryeh Neier, War Crimes (New York: Times Books, 1998), at 169.

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Failure to Prosecute Prima Facie War Crimes: Depriving a Civilian Population of Water

Art. 54 of the Protocol Additional to the Geneva Conventions of 12 August 1949 is about as unequivocal as prohibitions of military targeting get. Entitled “Protection of objects indispensable to the survival of the civil-ian population,” it states (Para. 2) that “it is prohibited to attack, destroy, remove or render useless objects indispensable for the survival of the civil-ian population, such as . . . drinking water installations and supplies . . . for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive.”

On April 25, a “NATO official” who did not wish to be identified told the Washington Times that a new phase of the NATO campaign would aim to destroy electrical systems and water systems in Belgrade and in other major Serbian cities in order to take the war directly to civilians.36 On May 23, “fifteen NATO bombs hit water pumps . . . in the northwestern town of Sremska Mitrovica for the second night in a row.”37 Attacks on May 24 “slashed water reserves by damaging pumps and cutting electricity to the few pumps that were still operative.”38 Only 30 percent of Belgrade’s two million people had running water, and the city was down to 10 percent of its water reserves.39 That these attacks were not aimed at military opera-tions in Kosovo is clear from the remarks attributed by the Washington Post to a Pentagon official, who stated that the attacks had been limited to Serbia proper but that “NATO commanders are understood to be planning to extend the attacks to Kosovo.”40 A clearer example of NATO’s targeting civilians in Serbia rather than soldiers in Kosovo would be hard to find.

To be sure, NATO responded to criticisms of these attacks by saying that it had not targeted water supplies but only the power system.41 This was clearly not true in regard to Sremska Mitrovica, but in any event is irrelevant, because what is prohibited is also “rendering useless” a water system, and NATO acknowledged that it was aware that its bombing of electrical stations would do this: “We are aware this will have an impact on civilians,” a NATO official told the New York Times on 24 May.

36 Washington Times, April 25, 1999, at C9.37 Washington Post, May 24, 1999 (World Wide Edition).38 Washington Post, May 25, 1999. P. A1.39 New York Times, May 25, 1999, p. A1.40 Washington Post, May 25, 1999. P. A1.41  BBC News Online, May 24, 1999.

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Clearly, NATO committed a prima facie war crime, and the evidence that it did so knowingly is at least as strong as anything used in the speedy indictment of Milan Martić. However, as a spokesman for the Interna-tional Relations Committee of the U.S. House of Representatives told the National Post (Ottawa), “You’re more likely to see the UN building dis-mantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal.”42

U.S. Government Direction of Prosecution 1: Milošević but Not Tudjman

The putative independence and impartiality of the ICTY was utterly com-promised by the indictment on May 27 of Yugoslav President Milošević and four of his political associates. While there may be little question that Milošević is guilty of war crimes, “justice” that is not impartial cannot be seen as just. The failure of the Prosecutor to indict NATO or its clients would seem to confirm Jamie Shea’s message that he who pays the pros-ecutor determines who is charged. It is particularly noteworthy that while the Prosecutor has been reported unable to indict Croatian generals for the 1995 ethnic cleansing of the Krajina because the U.S. government has refused to provide requested information,43 she made well publicized vis-its to American and British officials to gather information with which to indict Milošević. When a Prosecutor who is a citizen of one NATO country seeks assistance from the governments of other NATO countries in order to indict the President of the country that NATO is attacking, not even the pretence of prosecutorial independence remains.

U.S. Government Direction of Prosecution 2: Threats against Vuk Drašković

In July 1999, I was surprised when a close advisor to Vuk Drašković told me that the United States was threatening Drašković with indictment by the ICTY. If the Prosecutor’s office were truly independent, such a threat could not be plausible. However, the New York Times has also reported that “Washington has threatened Mr. Draskovic with indictment by the interna-

42 National Post, May 22, 1999.43 New York Times, 21 March 1999.

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tional war crimes tribunal in the Hague for the activities of his short-lived Serbian Guard, a paramilitary group, in Croatia in 1991.”44 Since contacts in Washington inform me that a major task of the U. S. government’s inter-departmental Balkans Task Force is now to support the Prosecutor’s office, that Washington feels free to threaten indictments seems highly plausible.

Denial of a Fair Trial 1: Judicial Deference to Prosecutor

Politicization of the ICTY Prosecutor’s office is especially troubling in light of the extraordinary deference that the judges of the Tribunal afford the prosecutor. This deference was first shown in regard to a truly outstand-ing scandal in the first case tried before the ICTY, that of Bosnian Serb Duško Tadić.45 In that case, no witness had testified to having seen Tadić personally commit an atrocity, such as murder or rape. However, the Pros-ecutor’s final witness testified that not only had he seen Tadić rape and murder, but he had also been forced by Tadić to rape and murder as well. The witness was a Bosnian Serb who had been captured by the Muslims, convicted by them of genocide and then presented to the ICTY Prosecutor as a witness against Tadić.

The witness testified under complete anonymity, his identity having been kept a secret even from the defense under a “protection order” meant to allay the fears of witnesses that they or members of their families would suffer retribution if they testified before the Tribunal. In permitting such protection orders the ICTY adopted one of the less admired procedures of the Spanish Inquisition, which also concealed the identities of witnesses from the accused,46 and so it is interesting that such American human rights advocates as the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee, the Center for Con-stitutional Rights, the Women’s Human Rights Law Clinic of the City

44 New York Times, Oct. 15, 1999, at A8.45 Candor requires me to state that I was actually the very first defense witness to

appear before the ICTY, in the Tadic case, on the question of the character of the conflict (national or international), a question discussed in the next section. My testimony was limited to constitutional and political issues in Yugoslavia and in Bosnia through 1992 (a précis of the testimony is found in my article in 22(#1) The Fletcher Forum of World Affairs 45–64 [1998]). Apart from one very brief meeting with Tadić in May 1996, at the request of his defense counsel, I had and have no personal acquaintance with Tadić or knowledge of the crimes for which he was accused.

46 H. Kamen, The Spanish Inquisition (New Haven: Yale University Press 1997), at 182, 194–195.

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University of New York and the Women Refugees Project of the Harvard Immigration and Refugee Law Program supported prosecution witness anonymity in a joint Amicus brief filed with the Tribunal.47

As it happened, the defense was able to show that the witness, “Witness L,” had lied.48 The man had said that his father was dead and that he had no brothers, but a member of the defense team was able to discover that, in fact, he had a brother and that his father was not dead, and arranged to confront the witness with his father and brother by bringing them to the Hague. At that point the witness not only confessed to lying about his family, but also claimed to have been forced by the Muslims, while he was in their custody, to agree to lie against Tadić, and then trained by them in the testimony he was to give in the ICTY. Confronted with these lies, the Prosecutor in Tadić informed the court that it did not regard his testimony as reliable and invited the court to disregard it, and the identity of the witness, one Dragan Opačić, was revealed.

At this point, the obvious questions would seem to have been why the witness lied, and whether in fact he was trained to do so by the Bosnian government, which had made him available to the Tribunal. Indeed, the Trial Chamber did order the Prosecutor’s office to investigate the mat-ter in order to determine whether charges of perjury should be brought against the Witness. However, at this point, the Trial Chamber gave both the Prosecutor and the Bosnian government extraordinary deference.

On December 2, 1996, the Prosecutor sent a letter to Alija Izetbegović, President of the Presidency of Bosnia and Herzegovina, thanking him for his cooperation in investigating the Witness L matter and exonerating his government of wrongdoing.49 Tadić’s defense lawyers, who had gone to Sarajevo to investigate the matter themselves, but who had been given the “cold shoulder” by the Izetbegović government,50 first heard of this

47 Prosecutor v Dusko Tadic, “Decision on the Prosecutor’s Motion Requesting Protec-tive Measures for Victims and Witnesses,” 10 August 1995, at paras. 10–11.

48 The basic story of “Witness L” can be found in news accounts: e.g. Internet Naša Borba 28 October 1996, Reuters, Oct. 25, 1996, Associated Press, Oct. 25, 1996. Copies of an interrogation of “Witness L” by Tadić’ defense attorney, Michail Wladimiroff, and of an Oct. 25, 1995 statement by ICTY Prosecutor’s investigator Robert Reid concerning Witness L’s lies and accusations against the Bosnian government are in author’s files. The most detailed account of the “Witness L” matter was broadcast on Dutch VPRO Radio’s Argos program on Sept. 10, 1999, a transcript of which (in English) is available at www.domovina .net/opacice.html (hereafter, Argos).

49 Institute for War and Peace Reporting, Tribunal Update no. 6 (Dec. 2–6, 1996).50 Letter to author from Michail Wladimiroff, 11 Nov. 1996.

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letter several weeks later, when I asked them for a copy of it.51 The Trial Chamber accepted this action by the Prosecutor without questioning why the Prosecutor had never shown greater zeal in determining the truth of the witness’s story before the defense challenged basic facts about it, an especially interesting question since the Prosecutor knew the identity of the witness, while the defense, by virtue of the protection order, did not.52 Since some parts of the witness’s story seemed to indicate that the Prosecutor’s office might also have been involved in training him to give false testi-mony, the Tribunal in effect asked the Prosecutor to investigate possible wrongdoing by her own office, while offering no support to the defense in its own efforts to investigate the matter.

To make matters even more odd, neither the judges nor the Prosecutor showed any interest in determining whether the witness had, in fact, been threatened by the Bosnian government or whether he would be mistreated were he to be sent back to that government. Opačić, who said that he had been tortured into making a confession to genocide in Sarajevo, asked not to be returned to the Bosnian government, requesting asylum in Holland.53 However, even though Opačič had an attorney to represent him on these issues, he was returned to the Muslims, without prior notice being given to his attorney.54 Opačić’s fears seemed not unreasonable – in at least one case similar to his, two supposed victims of a Serb who confessed to mur-dering them and was thereupon convicted of genocide were found alive, but the Bosnian government’s courts refused a new trial.55 Yet immediately after this false case received world-wide publicity, Opačić was returned to the control of the Bosnian government, where he now is serving a ten-year sentence for “genocide” following a conviction based solely on his own confession, which he says was extracted from him by torture.56

When the Dutch Argos journalists asked the Tribunal for an explana-tion of this failure to investigate the Opačić matter more thoroughly, or to consider his request for asylum, a Tribunal spokesperson said that

51 Fax letter from author to Michail Wladimiroff, 30 Dec. 1996; fax letter to author from Michail Wladimiroff, 7 January 1997.

52 It is in fact likely that the Defense was in violation of the protection order when it questioned people who, the defense thought might have been related to the anonymous witness. Had they followed the rules, however, the defendant could not have had a fair trial.

53 ICTY: Tadic Case: Update, 2 June 1997.54 Argos.55 New York Times, 1 March 1997, at 3; Washington Post, 15 March 1997, at A15; New York

Times, 15 June 1997, at 10.56 Argos.

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Defense Counsel Vladimirof [sic] did not prove that all of Dragan Opačić’s story was untrue. The only point that was established is that Opačić lied about his family members. His father wasn’t at all dead, as he had claimed. And that is the basis upon which the prosecutor decided that Opačić was not a reliable witness . . . . Why Opačić lied and whether the rest of his story was correct was not relevant to the Tadic case. He was no longer any use as a witness, and that is why we sent him back to Bosnia.57

Of course, Wladimiroff had not proven more about Opačić because his cross examination of him was stopped as being in violation of the protec-tion order,58 and the Prosecutor had also objected even to the evidence about Opačić’s identity but was overruled.59

The questions of why Opačić lied and especially of whether the Bos-nian government and even the Prosecutor’s office trained him to do so were basic to determining whether other witnesses might also have been trained to commit perjury. The Tadic defense did try to raise this question on appeal, in regard to the testimony of another witness who had been presented by the Bosnian government, but the Appeals Chamber did not accept this claim because the “circumstances” of the two witnesses were “different.” Mr. Opacic was made known to the Prosecution while he was still in the custody of the Bosnian authorities, while [the other witness’s] introduction was made through the Bosnian embassy in Brussels.”60 Why this particular difference might matter was not explained by the Appeals Chamber, which also failed to notice that while Opačić was in the cus-tody of the Bosnian government because he was captured as a soldier in the Bosnian Serb Army, the second witness’s name (Nihad Seferović) indicated that he was a Muslim and thus perhaps not as in need of as much persuasion to lie at the behest of the Muslim government as Opačić had been.

In the Witness L matter, then, the judges of the ICTY afforded very great deference to the Prosecutor and an equally great indifference to the causes of the perjury of a prosecution witness who had been found by the Bosnian government, or of the implications of the possible causes of the perjury for defendant Tadić and for the witness himself (who claimed, apparently with justification, to have been the victim of mistreatment by

57 Id.58 Fax letter to author from Michail Wladimiroff, 30 October 1997.59 Id.60 Prosecutor v Dusko Tadic, Judgment, 15 July 1999 (hereafter, Tadic appeal judgment),

para. 65.

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the Bosnian government), or for future defendants who might be victim-ized by what may have been collusion by the Prosecutor and the Bosnian government.

Denial of a Fair Trial 2: Changing the Trial Rules after the Trial is Over

In its decision on a preliminary question before the start of the Tadić trial, the ICTY Appeals Chamber stated that charges under Art. 2 of the Statute of the Tribunal (covering “grave breaches” of the Geneva Conventions) apply only to persons or objects “to the extent that they are caught up in an international armed conflict.”61 The same interlocutory decision con-cluded “that the conflicts in the former Yugoslavia have both internal and international elements.”62 It argued that, had the Security Council consid-ered the conflict international and bound the Tribunal to that position, an “absurd” conclusion would result:

Since it cannot be contended that the Bosnian Serbs constitute a State, arguably the classification just referred to would be based on the implicit assumption that the Bosnian Serbs are acting not as a rebellious entity but as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro). As a consequence, serious infringements of interna-tional humanitarian law committed by the government army of Bosnia-Herzegovina against Bosnian Serb civilians in their power would not be regarded as “grave breaches”, because such civilians, having the nationality of Bosnia-Herzegovina, would not be regarded as “protected persons” under Article 4, paragraph 1 of Geneva Convention IV. By contrast, atrocities com-mitted by Bosnian Serbs against Bosnian civilians in their hands would be regarded as “grave breaches”, because such civilians would be “protected persons” under the Convention, in that the Bosnian Serbs would be act-ing as organs or agents of another State, the Federal Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not possess the nation-ality. This would be, of course, an absurd outcome, in that it would place the Bosnian Serbs at a substantial legal disadvantage vis-a-vis the central authorities of Bosnia-Herzegovina. This absurdity bears out the fallacy of the argument advanced by the Prosecutor.63

In accordance with these decisions, the Prosecutor was required in the Tadic trial to prove that the conflict was, in fact, international. The Trial

61 Prosecutor v Dusan Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, 2 Oct. 1995 (hereafter, “Tadic Interlocutory”), para. 81.

62 Id. at para. 77.63 Id. para. 76.

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Chamber viewed the matter as controlled by the International Court of Justice’s decision in the Nicaragua case,64 that external support to a party in an internal conflict would only internationalize that conflict if the external party had “effective control” over the forces in question. The Trial Chamber, over the dissent of the presiding judge, found that the evidence showed only a coordination between the Bosnian Serb Army and the Yugoslav Army, not control of the latter by the former; and thus held that “on the evidence presented to it, after 19 May 1992, the armed forces of the Republika Srpska could not be considered as de facto organs or agents of the Government of the Federal Republic of Yugoslavia (Ser-bia and Montenegro).”65 Accordingly, the Trial Chamber found Tadić not guilty of charges under Article 2 of the Statute.66

The Prosecutor appealed that decision and won: the Appeals Cham-ber held that the Bosnian Serb forces were acting as “de facto organs” of the Federal Republic of Yugoslavia.67 In doing so, the Appeals Chamber reached precisely the conclusion in the Tadic appeal that it had itself pro-nounced “absurd” in the interlocutory appeal in the same case. The fairness of a Tribunal that sets explicit rules before a trial and then changes them after it is over is certainly dubious, but that is what the ICTY has done.

Also dubious is the reasoning of the Tadic appeal. At trial, of course, the burden of proof rested with the Prosecutor to prove that the events in question took place in the context of an international conflict, and the Trial Chamber concluded that this had not been proved. The Appeals Chamber, however, noted that the Trial Chamber had not said what the nature of the conflict was after May 19, 1992. Since the burden was on the prosecutor to show that it was international, there was no burden on the defense to show that it was not international. Yet the Appeals Cham-

64 Case Concerning Military and Paramilitary Activities in and Against Nicaragua, 1986 I.C.J. Reports 14. Ironically, the defendant in Nicaragua was the United States, so that the U.S. in Tadic was urging the abandonment of the position that had protected it in Nicaragua.

65 Prosecutor v Dusko Tadic, Opinion and Judgment, 7 May 1997 (hereafter, Tadic trial judgment), para. 607. The 19 May 1992 date was important because the Bosnian Serb Army was formally separated from the Yugoslav Peoples Army on or before that date, and the only evidence presented on the chain of command between the two armies after that date was that of a witness who said that “there was no real chain of command” between them, and evidence that the Bosnian Serb Army used secure communications links that ran through Yugoslav Peoples Army headquarters in Belgrade for its own internal com-munications (Id. para. 598).

66 Id. para. 608.67 Tadic appeal judgment, para. 167.

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ber phrases the question as whether the conflict “became . . . exclusively internal” after that date.68 Since the Tadic interlocutory judgment had concluded that the conflict had both internal and international elements, this could not have been the question that the defense had been required to counter, or, for that matter, that the Trial Chamber was required to determine.

Indeed, the Appeals Chamber itself recognized that the conflict was “prima facie internal,” because it set up the legal question involved as determining “the legal criteria for establishing when, in an armed conflict which is prima facie internal, armed forces may be regarding as acting on behalf of a foreign power, thereby rendering the conflict international.”69 The Trial Chamber had undertaken a serious review of the facts in Bos-nia in 1992 and had concluded that while the Bosnian Serb forces were allied to those of the Federal Republic of Yugoslavia, “there is no evidence on which this Trial Chamber can conclude that the Federal Republic of Yugoslavia . . . and the [Yugoslav Army] ever directed . . . the actual military operations of the [Bosnian Serb Army], or to influence those operations beyond that which would have flowed naturally from the coordination of military objectives and activities” by the two armies.70 The Trial Chamber based this conclusion in part on the fact that the Republika Srpska politi-cal leaders were popularly elected by the Bosnian Serb people and that these elected political leaders played a role in the activities of the Bosnian Serb Army.71

The Appeals Chamber, on the other hand, paid no attention to the activities of Bosnian Serbs as political or military actors in their own right. Instead, it concluded that since the Bosnian Serb Army had received some financing and equipment from the Yugoslav Army, “participation in the planning and supervision of military activities” would constitute “overall control” by the Yugoslav Army, thus rendering the conflict “international.” This reasoning, of course, negates the meaning of the term control by con-flating it with participation. At this point, the Appeals Chamber’s earlier acknowledgment that the conflict had both internal and international elements vanishes, and the Tadic appeal judgment reaches precisely the conclusion that the Tadic interlocutory judgment had rendered “absurd”: that even though both the Bosnian Serbs and their victims were nationals

68 Id. para. 86, emphasis added.69 Id., § IV.B.3 (heading).70 Tadic trial judgment, para. 605.71  Id. para. 599.

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of Bosnia and Herzegovina, the victims were “protected persons” because “they found themselves in the hands of armed forces of a State of which they were not nationals.”72

The Appeals Chamber, perhaps aware that it was rejecting its own ear-lier conclusion even if unwilling to admit it, justified its new holding on the “object and purpose” of Article 4 of Geneva Convention IV, as “the pro-tection of civilians to the maximum extent possible.”73 If this justification is valid, the distinction between “internal” and “international” conflicts that the Appeals Chamber affirmed in the Tadic interlocutory judgment is invalid – but for Tadic, it is the interlocutory standard that must apply. In any event, the Tadic appeals judgment then makes an extraordinary state-ment, that the applicability of the Geneva Conventions is not “dependent on formal bonds and purely legal relations.”74 The same judgment had already said, approvingly, that international law concerning State respon-sibility “is based on a realistic concept of accountability, which disregards legal formalities.”75 But legal formalities protect an accused – prosecutors, after all, need no protection, but the rest of us may benefit by the bounds put on prosecutorial zeal. The ICTY Appeals Chamber has thus clearly indicated that fairness of the proceedings for defendants is not high in its concerns.

In yet another striking lapse from both fundamental fairness and the principles of fair trials, the Appeals Chamber, apparently on its own initia-tive, introduced and discussed what it saw as evidence of FRY control over the Bosnian Serbs in 1995 as evidence that the FRY controlled the Bosnian Serb Army in 1992.76 Since the same Appeals Chamber judges had refused to permit the Tadic defense to introduce additional evidence after the con-clusion of the trial,77 this seems grossly unfair. However, “legal formalities” in regard to evidence do not seem to have been among the stronger points of this Appeals chamber, which refers in the Tadic appeal to findings of the international character of the conflict in “three Rule 61 Decisions” in other ICTY cases.78 Rule 61 proceedings are reviews of evidence in cases in which the defendant is not in custody, which “permit the charges in the indictment and the supporting material to be publicly and solemnly

72 Tadic appeals judgment, para. 167.73 Id. para. 168. 74 Id. para. 168.75 Id. para. 121, emphasis added.76 Id. paras. 157–160.77 Id. para. 16.78 Id. note 107.

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exposed.”79 Rule 61 proceedings are uncontested; in one, the Trial Cham-ber noted that powers of attorney had been lodged successfully by one defendant but refused the attorney access to the courtroom or any role in the proceedings.80 Judicial presentation of the Prosecutor’s uncontested allegations in cases other than the one at trial as being evidence on key issues in the latter seems grossly unfair.

For the Appeals Chamber, however, it would seem that justice is indeed the right to do whatever they think must be done, and therefore justice can be anything.

Problems for America? State Responsibility

The dissenting Trial Chamber judge in Tadic was an American – by far the greatest number of staff working in the Prosecutor’s office were American – and it is likely that the U.S. government supported the Appeals Chamber’s reversal of its own interlocutory decision in regard to the nature of the conflict. Yet if such a thing as international law ever does come into exis-tence, in the sense of a legal order binding all international actors, the U.S. might regret elements of the appellate decision in Tadic. The view that the imposition on States of responsibility of “de facto agents” should disregard “legal formalities” would not only hold the U.S. responsible for the actions of the Contras in Nicaragua but also for those of the Croatian Army in its 1995 offensives against Serbs in Croatia and Bosnia. It is no secret that the U.S. government arranged for the “private” firm Military Professional Resources, Inc. (MPRI) to train the Croatian Army, beginning in September 1994,81 activity that is attributable to the U.S. government under the Tadic appeal judgment. That the American-trained and Ameri-can equipped Croatian forces were committing war crimes was known to the United States government; witness Richard Holbrooke’s reference to the “harsh behavior of Federation troops during the [Sept. 1995] offen-sive,” which would have produced “forced evictions and random murders”

79 Prosecutor v Radovan Karadžić and Ratko Mladić, Review of the Indictments Pursu-ant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, (hereafter, Karadžić and Mladić, Rule 61 proceeding) para. 3.

80 Id. para. 4. Interestingly, the Trial Chamber described its actions in this uncontested Rule 61 proceeding as being in pursuit of the “mission” of “international criminal justice” of “revealing the truth about the acts perpetrated.” Id. para. 3. Truth, apparently, can be found reliably in the uncontested allegations of the Prosecutor.

81 Globus, 20 Oct. 1995.

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of Serbs had Banja Luka been taken – yet Holbrooke told the Croatian Defense Minister that “Nothing that we said today should be construed to mean that we want you to stop the rest of the offensive, other than Banja Luka . . . . We can’t say so publicly, but please take Sanski Most, Prijedor and Bosanski Novi.”82 Indeed, Holbrooke himself admits telling Croatian President Tudjman that the actions of Croatian forces could be viewed “as a milder form of ethnic cleansing.”83 Yet he urged that the offensive continue. Of course, as one of Holbrooke’s colleagues had put it when the offensive started, “We ‘hired’ these guys [the Croatian Army] to be our junkyard dogs because we were desperate. We need to try to ‘control’ them. But this is no time to get squeamish about things.”84 In addition to Holbrooke, then-U.S. Ambassador to Croatia Peter Galbraith has been reported to have “attended meetings when Croats planned war.”85

In the unlikely event that the ICTY ever takes its mandate as a charge to render impartial justice, and follows the principles announced by its Appellate Chamber in the Tadic appeal, American political actors who trained, armed and helped in the planning of Croatian offensives in which war crimes were committed should expect to be indicted, and the United Sates as a State should be charged with responsibility for the actions of its junkyard dogs and de facto agents, the Croatian Army. I do not expect this to happen, however. As Jamie Shea said, after all, the U.S. is the friend of the Tribunal, the U.S. is the major financier of the Tribunal.

What, then, does this politicization of the ICTY say about the chances of ever creating a regime of international law? We might ponder the view of a leading human rights advocate: that the ICTY “was a significant advance over the tribunals at Nuremberg and Tokyo, because it had a mandate to prosecute and punish malefactors from all sides . . . and has carried out its charge. Accordingly, unlike its predecessors, it is not susceptible to accu-sations of victor’s justice.”86 It is clear, however, that the ICTY is no more impartial than were earlier these earlier tribunals. Instead of being victor’s justice after the conflict, it is a tool meant to ensure victory during it.

82 R. Holbrooke, To End a War (1998), at 166.83 Id., at 160.84 Id. at 73.85 New York Times, May 30, 1996, at A7.86 A. Neier, War Crimes (1998), at 259.

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“Human Rights Peccadilloes” and Humanitarian War Crimes

To its credit, HRW has recognized that NATO’s actions in its war against Yugoslavia signaled “a disturbing disregard for the principles of humani-tarianism that should guide any such action”87 and criticized in particular NATO’s use of cluster bombs. It also stated that some of NATO’s attacks on Yugoslav infrastructure were clearly in violation of the Geneva Con-ventions. However, HRW has not called for investigation of NATO actions with the goal of prosecuting those in NATO who have violated human rights. One must wonder why this is so. At the least, we should expect to see HRW issue a demand for an independent investigation that could facilitate prosecution of those in NATO who have committed the crimes that HRW says that NATO committed in Yugoslavia, comparable to HRW’s December 1999 request that the U.N. Security Council appoint an independent commission of inquiry to investigate war crimes by Russian forces in Chechnya.88

The difference in standards applied to NATO and to Russia might be explained by an interesting distinction in a 1998 Washington Post op-ed piece by HRW executive director Kenneth Roth.89 Trying to assuage U.S. government concerns that new international judicial institutions could be used to accuse Americans of war crimes, Roth states that “clearly it is not U.S. policy” to commit genocide, war crimes or crimes against humanity, and that “there is no prospect” of harassment of “democratic leaders who have at worst a few human rights peccadilloes to their record.” Of course, Roth made this distinction before NATO committed what HRW identifies as violations of the Geneva conventions, but the distinction, perhaps, still holds: NATO, after all, is by definition democratic, so presumably its war crimes are peccadilloes, not worthy of prosecution.

Another explanation might be said to lie in the extremity of the situation to which NATO responded in Kosovo: that “it took NATO’s controversial bombing campaign before Belgrade would acquiesce in the deployment of international troops to stop widespread ethnic slaughter and forced dis-placement,” and that the inspiration for “NATO’s action was fundamen-tally humanitarian . . . . the desire to stop crimes against humanity was a major goal.”90 HRW’s recounting of the events leading up to NATO’s

87 HRW World Report 2000, at 5.88 See www.hrw.org/campaigns/russia/chechnya.89 Washington Post, Nov. 26, 1998, at A31.90 HRW World Report 2000, at 1, 5.

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attacks closely tracks that of Bill Clinton, who asserted that NATO “had to act” when Yugoslav forces “began an offensive” against the Albanians of Kosovo.91 Assuming that he read State Department reports, the President must have known that his account was inaccurate: in a report issued two weeks before the President published his article in the New York Times, the State Department said that until the NATO attacks were under way, Serb forces were engaged in “the selective targeting of towns and regions suspected of [Kosovo Liberation Army] activities,” not a general offensive against the Albanian population.92 This pattern of Serbian actions before NATO’s offensive is confirmed by the OSCE in its massive report on events in Kosovo, which shows that Serbian forces, until NATO attacked, were fighting the KLA and not engaged in systematic ethnic cleansing.93 HRW might have tacitly recognized this uncomfortable fact when it stated that “before using military force to stop crimes against humanity, planners at a minimum should be confident that intervention will not make mat-ters worse by provoking a wider war or setting in motion a string of new atrocities.”94 Yet applying this criterion to NATO’s actions would delegiti-mize them, which HRW clearly does not want to do.

The more fundamental problem in any event is HRW’s assertion that war can be seen as humanitarian. Attacks against civilians are probably inevitable in any supposedly humanitarian intervention. Every nation has the right to defend itself, and at the level of practical politics, a nation that is attacked will try to resist the attacker. Winning the war thus requires defeating not only the army, but the nation: the civilian population. Thus the decision to attack a sovereign state is, logically, a decision to attack the civilian population of that state, not just the military. NATO’s target-ing of the civilian infrastructure of Serbia (and earlier, of Iraq), is thus logi-cal, and the constant repetition that “NATO never targets civilians” was hypocritical, presumably meant to obscure the uncomfortable fact that humanitarian intervention requires the committing of humanitarian war crimes. At this point, the greatest triumph of the human rights movement, “humanitarian intervention,” is revealed as its greatest defeat, because it transforms what had been a moral critique against violence into a moral crusade for massive violence. Of course, HRW could escape this trap by

91  New York Times, May 23, 1999, at § 4 p. 17.92 U.S. State Department, Erasing History: Ethnic Cleansing in Kosovo, May 1999.93 OSCE, Kosovo/ Kosova As Seen, As Told: The Human Rights Findings of the OSCE Veri-

fication Mission (www.osce.org/kosovo/reports/hr/part1), Part I, Chapter 3.94 HRW World Report 2000, at 6.

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demanding the indictment of NATO leaders, but it would then precede the UN in being dismantled brick by brick and thrown into the Atlantic. While speaking truth to power is admirable, telling power what it wants to hear tends to bring more tangible rewards.

Humanrightsism

A month after NATO began its attacks on Yugoslavia, Vaclav Havel gave what seems to be a principled justification for the war:

this is probably the first war that has not been waged in the name of “national interests,” but rather in the name of principles and values . . . . This war places human rights above the rights of the state. The Federal Republic of Yugosla-via was attacked by the alliance without a direct mandate from the UN. This did not happen irresponsibly, as an act of aggression or out of disrespect for international law. It happened, on the contrary, out of respect for the law, for the law that ranks higher than the law which protects the sovereignty of states. The alliance has acted out of respect for human rights.95

Havel then states that human rights “are as powerful as they are because, under certain circumstances, people accept them without compulsion and are willing to die for them.”96

Havel sounds great but, in fact, even as he gave the speech quoted (April 29, 1999) he must have known that he lied. No one was willing to die for human rights, particularly in the Czech Republic,97 but rather NATO was engaged in killing for human rights. As Havel spoke, the alli-ance was targeting civilian “infrastructure” because attacking Yugoslav military targets would have exposed NATO pilots to danger. In the five days before his speech, NATO repeatedly bombed oil refineries in Novi Sad, causing massive pollution of the air and of the river Danube; bombed civilian targets in central Belgrade, and bombed a Serbian town on the Bulgarian border, destroying houses and killing civilians.98 All but the last were intentional targeting, so damage to the environment and civilian deaths were not “collateral damage.” Havel’s speech is thus either politically

95 V. Havel, “Kosovo and the End of the Nation-State,” New York Review 10 June 1999, at 6.

96 Id. at 6.97 See M. Znoj, “Czech Attitudes toward the War,” 8(#3) East European Constitutional

Review 47 (1999).98 U.N. Environment Programme and U.N. Centre for Human Settlements, The Kosovo

Conflict: Consequences for the Environment (1999), at 17.

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cunning, as befits the elected president of a sovereign nation-state; or else evasive, avoiding the truth that Havel could not, as a long-term supporter of human rights, admit.

But the difference between Havel the advocate of human rights and Havel the War President embodies the difference between human rights as a principle for criticism of the actions of governments and humanright-sism as a justification for government actions that violate human rights. By humanrightsism, I mean what the New York Times has described as the “elevation” of human rights to a “military priority,”99 since military priori-ties are by definition based on the threat and use of force. This “eleva-tion” is actually a striking inversion of the principles that have guided the growth of human rights organizations. For example, Amnesty Inter-national long required that its “prisoners of conscience” not be advocates or practitioners of violence.100 Humanrightsism, however, itself calls for violence.

I am aware, of course, of the revival of “just war” arguments, by political philosophers101 and politicians.102 In regard to the latter, however, surely even Vaclav Havel realizes that all politicians justify wars by reference to “principles and values,” and justification for attacks that are not based on self-defense are often less than reliable assessments. After all, were governments that apply force always candid in their reasons for doing so, HRW and other human rights organizations would not have been in business in the first place.

The question then, remains: why have human rights advocates ignored the actions by NATO and by the ICTY that they would condemn were they performed by, say, China, or Russia, or India?

This question is addressed directly in a brilliant and brave article by Dimitrina Petrovna, Executive Director of the European Roma Rights Cen-ter in Budapest.103 Petrovna acknowledges that she herself was in favor of NATO intervention in Kosovo until she saw, soon after the bombing

99 Editorial, New York Times, 13 June 1999.100 See, e.g., Amnesty International, Yugoslavia: Prisoners of Conscience (1985), at 9–10:

“the following violations of human rights in Yugoslavia are of concern to Amnesty Interna-tional: the arrest and imprisonment of people for their non-violent exercise of internation-ally recognized human rights . . . . the vague formulation of certain legal provisions which enables them to be applied so as to penalize people for the non-violent exercise of their human rights.”

101  E.g., M. Walzer, Just and Unjust Wars (2d ed., 1992).102 E.g. W. Clinton, “A Just and Necessary War,” New York Times, May 23, 1999 at 4–17.103 D. Petrovna, “The War and the Human Rights Community.” 8(#3) East European

Constitutional Review 97 (1999).

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began, that it was escalating the human rights catastrophe for everyone in the Federal Republic of Yugoslavia, inside Kosovo and in Serbia, and that “from a campaign to defend the lives and rights of Kosovo Albanians, [the war] metamorphosed into something else: the monster of an escalated war.”104 While Petrovna herself then called for an immediate end to the bombing and a negotiated peace, few others in the human rights commu-nity did so. She notes that for east European human rights workers, their very status and funding could have been jeopardized by criticism of NATO and especially of the US – NATO countries are, after all, the major finan-ciers of more than just the ICTY. In the Western countries themselves, however, the reasons are more troubling. There, she notes, “human rights are becoming indistinguishable from official political ideology,” producing “a gradual usurpation of the human-rights culture by the dominant pow-ers, and the very argument for human rights is turning into an apologia for the global status quo, all in the interests of these very powers.”105

From the evidence of NATO’s actions in Kosovo and the ICTY’s treat-ment of defendants, this transformation of human rights inverts the con-cept, from one premised on the protection of people from the violence of states, to one justifying the application of violence by the world’s most powerful states against weaker ones. With this transformation, human rights betrays its own premises and thus becomes its own travesty: humanrightsism.

104 Id. at 99.105 Id. at 101.

CHAPTER ELEVEN

“GENOCIDE DENIAL” LAWS AS SECULAR HERESY: A CRITICAL ANALYSIS WITH REFERENCE TO BOSNIA

In early February 2007, the British newspaper The Daily Telegraph reported that Germany would propose to the European Parliament leg-islation requiring that “Each member state shall take the measures nec-essary to ensure that the following intentional conduct is punishable: ‘publicly condoning, denying or grossly trivialising of crimes of genocide, crimes against humanity and war crimes.’ ”1 The Ottawa Citizen reported immediately thereafter that under such legislation, Canadian retired Major General Lewis MacKenzie would face charges for questioning the numbers killed at Srebrenica in 1995. According to the paper, MacKenzie acknowledges that thousands were killed, but denies that the acts consti-tuted genocide.2

This German proposal for criminalizing speech about historical events raises many troubling issues, and no less a genocide scholar than Deborah Lipstadt, who had famously won a legal case against David Irving on the issue of Holocaust denial, came out firmly against it.3 The proposed law is clearly contrary to what Amnesty International, in a 1985 criticism of the prosecution of various nationalists and other dissidents in what was then Yugoslavia, described as “the non-violent exercise of internationally rec-ognized human rights, in particular the right to freedom of expression.”4 It has been criticized on such grounds, and passage delayed.5 But this proposed EU legislation about genocide denial is only one of a number of such laws in Europe, some of which are in force and have been used to convict people of verbal crimes. A Turkish politician, for example, was convicted in Switzerland in March 2007 for denying that the mass killings

1   “EU plans far-reaching ‘genocide denial’ law,” The Daily Telegraph (London), Febru-ary 2, 2007.

2 Ottawa Citizen, February 2, 2007.3 Daily Telegraph, February 2, 2007.4 Amnesty International, Yugoslavia: Prisoners of Conscience (London, 1985), pp. 9–10.5 The blog of Deborah Lipstadt, “History on Trial,” had covered the issue: see http://

lipstadt.blogspot.com/, entries for May 29, 2007 (“EU Legislation on genocide denial: Still in flux”) and April 23, 2007 (“EU Law to outlaw Genocide denial defeated”), though the latter pronouncement was, as Lipstadt admitted on May 29, premature.

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of Armenians in 1915 constituted genocide, even though he had acknowl-edged that massacres took place.6 Others have been convicted in Austria and France for denying the reality of the Holocaust.

In Europe, such cases are governed overall by the European Conven-tion on Human Rights, Article 10(1) of which provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” However, this right is qualified by Art. 10(2), which states that “The exercise of these freedoms, since it carries with it duties and responsibilities, may be sub-ject to such formalities, conditions, restrictions or penalties as are pre-scribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals. . . . ” Further, Art. 17 provides that “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activ-ity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Taken together, Arts. 10(2) and 17 provide mechanisms for imposing restrictions on the rights otherwise guaranteed by Art. 10(1).

A provision in the proposed legislation saying that “member states may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting”7 is hardly re-assuring, since it actually would increase the kinds of vague-ness and uncertainty that Amnesty complained of in 1985: that the “verbal delict” sections of socialist Yugoslavia’s criminal law rested on “the vague formulation of legal provisions which enables them to be applied so as to penalize people for the non-violent exercise of their human rights.”8 By the language of the proposed EU legislation, states would be empowered to criminalize non-violent, verbal actions that are not likely to disturb public order and are not “threatening, abusive, or insulting;” indeed, they

6 “Turkish politician fined over genocide denial,” www.swissinfo.org/eng, March 9, 2007, 11:51 AM.

7 Council of the European Union, 2794th Council meeting, Justice and Home Affairs, Luxembourg, 19–20 April 2007, “Council Framework Decision on Combating Racism and Xenophobia.” Council of the European Union Press Release 8364/07 (Presse 77) (EN) [emphasis added].

8 Amnesty International, Yugoslavia: Prisoners of Conscience, p. 10.

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actually are called on to do so, but given the option to be more limited in their approach.

This call to criminalize verbal acts that do not disturb public order and are not threatening, abusive or insulting makes the proposed “genocide denial” legislation closely resemble two other regimes of criminalization of speech in modern Europe. As already mentioned in regard to Yugosla-via, the states of what was then “actually existing socialism” had similar prohibitions on speech critical of key elements of the socialist order, and this article points out some of the similarities in the language used to justify genocide denial laws and those criminalizing some verbal actions under state socialism. Further, both of these efforts to criminalize speech rest on justifications similar to those used to justify treating heresy as a criminal offence, punishable by state courts rather than just religious ones, in Britain and the U.S.A. from the late 18th until the early 20th centuries. It is due to these similarities that this article analyzes “genocide denial” laws as efforts to punish secular heresy.

Though the concept of heresy is derived originally from religious dis-course, the term has wider meaning, as “a doctrine, opinion or set of opin-ions at variance with established or generally received views or doctrines” (Webster’s 20th Century Dictionary, unabridged, 2d ed.). I see criminaliza-tion of such unorthodox views as an attempt to protect deeply-held doc-trines that are widely regarded as so important that challenging them should be a punishable offense. The whole point of criminalizing the pre-sentation of a point of view is to prevent anyone from considering that some elements of it might be true, and so defining all forms of criticism as illegitimate may be the most clear indication that the ban is on heresy. Were a heretical challenge to be true, the impugned belief system must fall, and thus the possibility of the truth of a heresy is incompatible with the very concept itself. Religious heresy cannot logically be reduced to an empirical question, since God’s truth is not testable empirically. Genocide denial claims often could be treated, at least in principle, as empirical questions, but criminalizing the denial of genocide is aimed at preventing empirical investigation that would counter the officialized truth; that is, after all, the very essence of the crime.

A striking feature of the concept of genocide denial is that it is being invoked to justify infringement of the fundamental right of freedom of expression in societies that otherwise claim to make human rights central to their ideology. Since this infringement can be made even in cases when there is no threat to public order, it is not comparable to the classic exam-ple of justifiable infringement of free speech in the USA, that freedom of

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speech does not cover “falsely calling fire in a theatre,” or the creation of a “clear and present danger” to public order.9 The same capacity to justify violation of what would otherwise be fundamental principles of legitimate social or political action was, until the Twentieth Century, exhibited by the concept of heresy, since it was punished as a secular crime, not a reli-gious one, in self-consciously secular, modern states. One is reminded of Kenneth Burke’s “God terms,” those key concepts that can be invoked as ultimate values that stop further discussion, and that need not be deistic: money, for example, as a God-term for economists.10 If God-terms need not be deistic, neither must heresy, as discussed more fully below.

These are not abstract issues, but rather ones that can have real con-sequences, not only for deniers of the reality of the Holocaust, Turkish politicians who deny that the 1915 massacres of Armenians constituted genocide, and Canadian generals unwise enough to speak about their experiences in Balkans peacemaking missions, but also for scholars and others who take seriously the need to understand the facts, causes and meanings of instances of mass killings that are, arguably, genocide, because the nature of “genocide denial” laws is to prevent, or at least dis-courage strongly, the argument from taking place. In order to show the potentially oppressive nature of these laws, this article makes a sustained critical analysis of the findings of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Gen. Radislav Krstić that the mass killings of Bosniaks by Bosnian Serb forces in Srebrenica in July 1995 constituted genocide. Since the proposed EU legislation calls for crimi-nalizing the denial of genocide when specific acts have been recognized as such by a competent international court, if that legislation passes, denying the applicability of the term to Srebrenica seems, prima facie, to constitute a criminal act.

It is thus with some discomfort that in this article I do exactly that, by questioning the ICTY decision. It is my contention that the finding that the Srebrenica massacre constituted genocide distorts the definition of the term to the point at which it becomes so broad as to lose the possibility of uniform application. If this contention is true, however, the concept of criminalizing “genocide denial” becomes contrary not only to principles of free speech and intellectual inquiry, but also manifests the same problem

   9 Schenck v. United States, 249 U.S. 47 (1919).10 Kenneth Burke, A Grammar of Motives (Berkeley: University of California Press 1969

[orig. 1945]).

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that Amnesty International identified in its reports twenty years ago on the vagueness of the “verbal crimes” provisions of the criminal laws of the former Yugoslavia, which made it possible for them to be applied for politically motivated reasons to punish the legitimate exercise of human rights and freedoms.

An Inherently Provocative Case Study: The Issue of “Genocide” in Bosnia

It is probably unavoidable that this case study be provocative. Bosnia was unquestionably the site of major crimes in violation of international humanitarian law, and Srebrenica the site of the single largest mass killing in Europe since the 1940s. As such, they have become emblematic of the need felt by many to develop new means of punishing such crimes. To question whether “genocide” took place there must therefore be provoca-tive to those who truly believe that that supposed fact cannot be ques-tioned. But it is precisely such a seemingly well-settled situation that is needed to show the fallacy of attempting to make any judicial decision immune from challenge.

The inherently provocative nature of the case study makes discus-sion of it difficult, however. Indeed, one reviewer for this journal bluntly asserted that the first version of this paper constituted “genocide denial” and was “brilliant and vicious,” without addressing any of my arguments. Not exactly a scholarly critique, but indicative of a major problem with even discussing these issues. The word “genocide,” a term stemming from the Holocaust and invoking its unquestionably well-documented horrors, connotes exceptional evil, more than other war crimes and mass killings. To those who firmly believe that genocide has occurred, questioning that belief is an immoral, or perhaps “vicious,” act.

It is necessary to state up front that my challenge is not to the facts of the mass killings at Srebrenica as determined by the ICTY, or to those acts as being criminal, but rather to the labeling of them as constitut-ing “genocide.” In arguing what will be a controversial case, this article first discusses the magnitude of the mass killing at Srebrenica, accept-ing the figures put forth by the ICTY’s experts in scientific articles, and a study directed from Sarajevo that has been supported by several Euro-pean states. Further, there is no question that the killings at Srebrenica were criminal, and their perpetrators were guilty of a number of serious crimes punishable by the ICTY: extermination, persecution, murder and inhumane treatment, to name other crimes of which Gen. Krstić was

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convicted. The issue is simply the applicability of the term genocide, even accepting the numbers of the dead and the criminality of the act.

A Necessarily Provocative Analytical Framework: Secular Heresy

My invocation of the term “heresy” to cover genocide denial laws, equat-ing for this purpose beliefs in concepts such as human rights with those in the tenets of deistic religions, seems also to be provocative. Yet as stated above with reference to Kenneth Burke’s “God terms” and the diction-ary definition of heresy, and in more detail below, what is comparable between religious heresy, genocide denial prohibitions and the “verbal delicts” of criticizing state socialism is that they are all concerned with protecting beliefs that are held, often sincerely, as being essential to the just ordering of society. I belabor this point because despite these argu-ments and references, and indeed without discussing or even noting them, one reviewer of an earlier version questioned the applicability of “arguing from medieval heresy and dogma” despite my explicit argument that I was not doing that, and another asserted that by invoking the concept of heresy I ignore that the genocide denial laws had “serious arguments in their favor and serious people behind those arguments.” No doubt, but irrelevant: many of those who banned religious heresy and criticisms of the premises of state socialism were serious people making serious argu-ments. Or at least, they thought that they were. The point is that those who would criminalize genocide denial, like those who criminalized criti-cisms of state socialism and those who criminalized the promulgation of religious heresy, used very similar reasoning, and even similar wording, to justify their actions.

I use the term “heresy” not as metaphor but rather as an analytical term: this is the larger concept that encompasses efforts to criminalize speech that questions basic tenets of an ideological or belief system, such as inter-nal criticisms of state socialism, or denial of the applicability of the term genocide for some mass crimes, in a system that purports to make central the protection of human rights. If this is “provocative,” as reviewers have complained, the provocation seems necessary to force consideration of the similarities between these efforts at criminalizing speech on political grounds. The comparison may well cause discomfort to those who think that efforts of protection of secular belief systems are not subject to the same forms of criticism as deistic ones, but that is an assumption that this article is meant to bring into question with the concept of “secular heresy,” to which we now turn.

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Heresy in a Secular Europe

As a category of criminal act, heresy is generally linked to religion, espe-cially Christianity.11 Yet for hundreds of years, in English and American law, at least, while heresy has been defined in terms of denying some of the essential doctrines of Christianity, its criminalization has not been justified on theological grounds, but rather on the need to protect public order and the bases of morality. Thus in the classic 18th century statement of English law, Sir William Blackstone made it clear that while punish-ment of apostasy and heresy as denials of religion should be exclusively in the realm of ecclesiastical courts, criminal penalties by the state of up to three years imprisonment were justified, not on religious grounds, but rather because the acts threaten to “destroy all moral obligation,”12 those principles of correct action upon which society ultimately relies, because almost everyone believes in them. American and British cases from the 19th and early 20th centuries took the same position, and extended it by saying that punishment for verbally denying Christianity was justified on the grounds that it offended the beliefs of the majority of the people and thus threatened the public peace.13 By 1883, the law in England was that verbal denials of the tenets of Christianity could only be punished as crimes if there was malicious intent to insult others.14

These grounds for permitting punishing heresy are secular, since what is at stake is not the truth of any specific Christian doctrine but rather the risk that denial of these truths may spark violence since the vast majority of the population believe Christianity to be the one true religion. Thus heresy is punishable because the belief system it challenges is pronounced as central to the maintenance of social order.

We may recall that speech and writings that “endanger the social order” were prohibited under state socialism in eastern Europe, and that pros-ecutions on such grounds were cited by organizations such as Amnesty International as violations of human rights. In the specific case of socialist Yugoslavia, Art. 114 of the federal criminal code prohibited acts “intended to curtail or overthrow the authority of the working class and work-ing people . . . breaking up the brotherhood and unity or destroying the

11   See generally Leonard W. Levy, Blasphemy: Verbal Offence Against the Sacred, From Moses to Salman Rushdie (New York: Knopf, 1993).

12 Blackstone, William, Commentaries on the Laws of England (9th ed.). London: W. Strahan, 1783. Book 4, ch. 4, p. 44 (emphasis added).

13 Levy, Blasphemy, p. 413.14 Levy, Blasphemy, pp. 486–487.

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equality of the nations and nationalities of Yugoslavia.”15 A large part of the justification of the Yugoslav government at the time was that they were punishing “hate speech” by such prosecutions. Amnesty International (AI) noted in its 1985 report that repression of speech was most severe in Bos-nia and Herzegovina, and also that the government “frequently referred to the bloodshed of that period [i.e., World War II’s “bitter communal fighting”] as a justification for repressive measures,”16 but clearly did not accept that argument, since AI adopted 14 “prisoners of conscience” from amongst those so persecuted.

It is, however, very much the same kind of reasoning that lies behind recent attempts to criminalize “genocide denial.” The proposed legislation is justified under attempts to prohibit racism and xenophobia. A similar regulation, providing for “the criminalisation of acts of a racist and xeno-phobic nature committed through computer systems,” provides a clear statement of the centrality of the ideology underlying the rules. That is, that “acts of a racist and xenophobic nature constitute a violation of human rights and a threat to the rule of law and democratic stability.”17 Thus, even though the Convention recognizes that “freedom of expression constitutes one of the essential foundations of a democratic society, and is one of the basic conditions for its progress and for the development of every human being,” application of this core democratic value must be denied when communication involves “racist and xenophobic propaganda.”

A principle that must fall upon the invocation of another one is inferior to the latter, so this phrasing means that achieving the goal of fighting racism and xenophobia is superior to protecting the mechanisms usu-ally regarded as necessary for maintaining a democratic society. Clearly, then, criminalization of genocide denial sanctifies the beliefs challenged by racism and xenophobia as the true core values ensuring the stabil-ity of the social order of modern Europe. I say “sanctifies” because while these values are secular, in the sense of not being grounded directly on the established religious orders of Europe, they function as core moral values in the same way as did the religious doctrines of the period when heresy was criminalized on non-religious grounds. Of course, it is not

15 Quoted in Amnesty International, Yugoslavia: Prisoners of Conscience (London, 1985), p. 34.

16 Amnesty International, Yugoslavia: Prisoners of Conscience, pp. 27–28.17 Council of Europe, “Additional Protocol to the Convention on cybercrime, concern-

ing the criminalisation of acts of a racist and xenophobic nature committed through com-puter systems.” http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm.Strasbourg, 28.I.2003 (emphasis added).

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necessary to define “ religion” solely in terms of belief in a supernatural power, and Durkheim’s view of religion as society celebrating itself seems applicable here.

Genocide denial differs from other proscribed “hate speech” in that it is defined as a criminal offense in all contexts, while other verbal hate crimes are defined in terms of contexts that are especially dangerous. Actually, the Council of Europe had earlier called for criminalization of certain forms of speech, and specifically of genocide denial, without attracting the controversy of the EU proposal. An “additional protocol to the Coun-cil of Europe Cybercrime Convention,” concerning materials and “acts of racist or xenophobic nature committed through computer networks” was adopted by the Council of Europe Committee of Ministers on 7th Novem-ber 2002, to enter into force in March 2006.18 The electronic speech to be criminalized by the Council of Europe includes “Dissemination of racist and xenophobic material through computer systems” (Art. 3) with “racist and xenophobic material” defined as “any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or eth-nic origin, as well as religion if used as a pretext for any of these factors” (Art. 2, emphasis added). Also to be criminalized is the making of a “racist and xenophobic motivated threat” (Art. 4), or a “racist and xenophobic motivated insult” (Art. 5). Prohibiting “threats,” “insults” and “promoting,” “advocating” and “inciting” hatred or violence may be seen as a rational means of preventing violent social conflict. However, “genocide denial” (Art. 6) seems of a different nature, since it criminalizes “distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts con-stituting genocide or crimes against humanity.” These actions – denial, minimizing, approving, and justifying – are not linked to circumstances in which the action might spark immediate threat to social peace, but rather are to be criminalized even in contexts in which there is no danger that they could serve to advocate, incite or promote violence, or threaten anybody, and they are not phrased in terms of hatred or racism. The draft EU proposal, in specifying that states “may choose to punish only conduct which is either carried out in a manner likely to disturb public

18 Text at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=189&CM=8&DF=17/02/2006&CL=ENG.

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order or which is threatening, abusive or insulting”, mentioned above, is instructive: they may also choose to punish speech that is not threatening, abusive or insulting, or a threat to public order.

Major human rights organizations seem caught in a dilemma, sup-porting, in principle, freedom of speech but also supporting prosecution of “hate speech.” Amnesty International continues to express concerns about the potential of some kinds of genocide denial legislation to violate the right of free speech. In October 2006, AI issued a statement criticizing the adoption by the French National Assembly of a bill that would make it a crime to contest that the massacres of Armenians in Turkey in 1915 constituted a genocide, since “the proposed law has the effect of criminal-ising those who question whether the Armenian massacres constituted a genocide – a matter of legal opinion – rather than whether or not the killings occurred – a matter of fact.”19 On the other hand, AI’s website shows no expression of concern that Switzerland in February 2007 did exactly that, convicting a Turkish man for denying that the 1915 massacres constituted “genocide” even though he acknowledged that massacres took place.20 A month after that conviction another AI press release on “Rac-ism and Discrimination as Europe’s Key Human Rights Problems” called for EU member states to “provide effective protection against . . . hate speech across the EU, while safeguarding freedom of expression.”21

Human Rights Watch (HRW), for its part, has expressed some concern about the dangers of criminalizing “hate speech” and “genocide denial,” yet seems to be willing in the end (probably unlike King Solomon though he was not, ultimately, put to the test) actually to split the baby: “Geno-cide deniers should be marginalized, and even subject to other forms of sanction where they cause real harm, but they should not be subject to incarceration except where their actions amount to incitement to violence.”22 The mechanisms of “marginalization” or of “other forms of sanction” remain unspecified, as does the concept of “real harm,” raising problems of vagueness.

19   Amnesty International, Public Statement: “France: Amnesty International urges France to protect freedom of expression.” AI Index: EUR 21/009/2006 (Public), 18 October 2006.

20   “Turkish politician fined over genocide denial,” www.swissinfo.org/eng, March 9, 2007, 11:51 AM.

21   Amnesty International EU Office Press Release, “Racism and discrimination – Europe’s key human rights problem.” AI Index: IOR 61/010/2007 (Public), 21 March 2007.

22 Human Rights Watch, Annual Report 2007, “Genocide Denial: Incitement or Hate Speech?” http://www.hrw.org/wr2k7/essays/shrinking/4.htm.

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The difficulty faced by both AI and HRW is in keeping with the, to my knowledge, unremarked incongruity that an organization called Amnesty International is running what it calls a “campaign” to prosecute people accused of genocide and “crimes against humanity, war crimes, torture, extra-judicial executions and disappearances,” and specifically to support international tribunals such as the ICTY. If an organization that defines itself as being “concerned solely with the impartial protection of human rights”23 supports prosecutors, it should not be surprising that it is will-ing to accept a ban on criticism of the philosophical underpinning of the prosecutions.

Liability for genocide denial makes sense if one accepts that genocide, as the ultimate manifestation of racism and xenophobia, actually is the greatest challenge to the moral principles that are currently said to define European civilization. By this reasoning, it is the possibility of genocide that makes racist and xenophobic speech threatening to “the rule of law and democratic stability,” rather than being of purely personal concern to the recipient, and possibly threatening to the peace of only a local com-munity. It is, after all, this threat to the general social order that justifies the suppression of what would otherwise be essential democratic rights. But if the risk of genocide occurring is remote, the threat to the democratic order is as well, and so the justification for censoring hate speech becomes much less compelling. It is for this reason, I think, that the occasional finding that “genocide” has occurred is actually a necessary condition for justifying the suppression of “hate speech.” “Genocide denial” is thus not criminalized because it actually threatens public order, but rather because it threatens the presumption that the general moral and social orders are endangered by hate speech.

This is not to say that genocide has not taken place or cannot take place, but rather only to explain why it is that the question of genocide is so sacred that its denial not only is punishable, but, as with other forms of heresy, it is by definition impossible to defend against the charge by referring to facts that would support the challenge to the established doc-trine, since the very attempt to do so would constitute another crime of genocide denial. Yet this exercise at thought control is not likely to help us understand the causes of mass killings in the modern world. In fact, the contrary is true. By ruling out forms of empirical investigation of some of

23 http://web.amnesty.org/pages/aboutai-index-eng.

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the worst cases of mass killing in recent history, “genocide denial” crimi-nalization can only impede understanding of the nature of the crimes.

Courts, Facts and Meaning

Lest the last sentence seem extreme, the European Court of Human Rights has stated, with specific regard to genocide denial, that there is a “category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17.”24 The question would then become how a “histori-cal fact” should become “clearly established.” Genocide denial legislation proposed by the Council of Europe, written specifically to conform with the provisions of this European Court of Human Rights decision, seems to answer this in a rational and indeed indisputable way: “acts constitut-ing genocide or crimes against humanity, as defined by international law and recognized as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945 [the Nuremberg Tribunal], or of any other international court established by relevant international instruments.”25 Decisions of the International Criminal tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) would clearly qualify.

Justice Robert Jackson of the U.S. Supreme Court once quipped that he and his colleagues “are not final because we are infallible, but we are infallible only because we are final.” And while courts do indeed make final dispositions in regard to the matters in front of them, the adversarial process used in courts is notoriously unsuited for making reliable determi-nations of fact. Were it otherwise, scientific progress would be conducted via adversarial proceedings rather than through the constant processes of testing ideas. International tribunals may be final because there is no appeal from them, but this does not make them any more reliable for making accurate decisions than any other court.

Differences in evidence presented, the varying skills of advocates, and the predilections of judges lead inevitably to differing decisions. As shown

24 European Court of Human Rights, Judgment of 23 September 1998, Case of Lehideux and Isorni V. France, (55/1997/839/1045), para. 47 (emphasis added).

25 Council of Europe, “Additional Protocol to the Convention on cybercrime, concern-ing the criminalisation of acts of a racist and xenophobic nature committed through com-puter systems.” http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm. Strasbourg, 28.I.2003.

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below, different courts, and even different benches of the same court, may give incongruent decisions on whether “genocide” took place, so that a single authoritative opinion may be hard to isolate. Yet even if there is such a single opinion, there is no guarantee that it is based on complete or reliable evidence. It has long been a stable of the literature in law and social science that the formal equality between parties in legal proceed-ings is often a fiction, and that some kinds of litigants enjoy substantial advantages over their adversaries.26 In particular, parties involved in a number of cases dealing with the same sets of issues (“repeat players”) have substantial, systemic advantages over opponents whose sole inter-est is in the single case litigated between them (“one-shotters”). In the International Criminal Tribunal for the Former Yugoslavia, the Office of the Prosecutor is a repeat player par excellence, having command over far greater resources of money, personnel and political connections than do defense attorneys. Few of the latter have participated in more than one case, and defense attorneys are in any event less likely than the prosecu-tion to have a strategy connecting the disparate cases and in fact are prob-ably ethically barred from doing so. For example, while prosecutors can and do negotiate with “small fish” to get their testimony against “big fish,” a defense attorney who would sacrifice the interests of one client in favor of those of another would be acting unethically. Prosecutors can bring strings of coordinated cases all aimed at establishing that point, against single-shot defendants and their lawyers who may have neither the per-sonal interest nor the institutional or economic capacity to counter them. For this reason, a finding of “genocide” in a particular case may well reflect only the ability of the prosecution to bring superior resources to bear in the proceedings, and to manipulate cases strategically in ways not open to defense attorneys.

The ultimate flaw in proclaiming a court decision to be final, however, is that the question of whether “genocide” took place is not one of fact, but rather of the meaning to be assigned to a set of facts that are taken to have been proved. The fundamental difference between these two kinds of enterprises is that a question of fact is one that can in principle be determined on the basis of empirical evidence (e.g., how many were killed at Srebrenica?), while the assignment of meaning to facts thus established can have no empirical referent (e.g., how many must be killed, under what

26 Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” Law & Society Review 9: 95 (1974).

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circumstances, for “genocide” to be said to have occurred). Tzvetan Todo-rov puts the matter well: “facts can be right or wrong, but meanings are constructed by the writing subject, and may change. A given interpreta-tion may be untenable, that is, it may be refuted, but there is no absolute degree of truthfulness at the other end of the scale.”27 Genocide denial laws treat questions of meaning as questions of fact, a logical error that is also an attempt to freeze history. This is an impossible task, at least with-out total control over the production and dissemination of social memory. A critical discussion of the findings of genocide in Bosnia provides a case study in support of the above arguments.

The Factual Context: Numbers of Dead in Bosnia, 1992–95, and at Srebrenica, July 1995

As discussed in detail in Chapter 7, as soon as the war began, the Bos-nian government and U.S. government issued inflated figures for casual-ties, arriving already in January 1993 at 200,000, most said to be Bosnian Muslims. This number then stayed fairly stable until the end of the war. Estimates of casualties made by researchers during the war period varied widely. Figures from institutions or individual researchers within Bosnia and Croatia ranged from a low of 156,824 to a high of 329,000. Those from outside of Bosnia were somewhat lower, ranging from 25,000–60,000 by former State Department officer George Kenney to 200,000 by Chicago law professor Cherif Bassiouni.28

After the war, demographers Ewa Tabeau and Jakub Bijak, working as experts for the Office of the Prosecutor in the ICTY, estimated the total fig-ure of war-related casualties in Bosnia – Herzegovina, 1992–95, of 102,622.29 Of known casualties (as opposed to estimates), 68.6% were Muslims (offi-cially called Bosniaks after 1994), 18.8% Serbs, 8.3% Croats. Of these 47,360 were estimated to be military casualties, and 55,261 civilian. However,

27 Todorov, Hope and Memory, p. 123; see also Tzvetan Todorov, “Fictions and Truths,” in his Morals and History (Minneapolis: University of Minnesota Press, 1995).

28 These studies are summarized and evaluated by Ewa Tabeau and Jakub Bijak, “War Related Deaths in the 1992–95 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results.” European Journal of Population 21: 187–215 (2005).

29 Tabeau and Bijak, “War Related Deaths in the 1992–95 Armed Conflicts in Bosnia and Herzegovina.”

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they noted that their figures were least complete and reliable from the Republika Srpska.

Mirsad Tokača, the director of a non-governmental research center supported by a number of western governments, announced in December 2005 that final figures were expected to be about 102,000, and that of the data processed to date, 67.87% of the casualties were Bosnian Muslims, 25.81% Serbs and 5.39% Croats. Of the Muslim casualties, 50% were mili-tary, 50% civilian, a ratio that holds for the far fewer Croat casualties as well. Serb casualties were overwhelmingly military: 21,399, to 1,978 Serb civilians.30 Thus the two most reliable studies of the 1992–95 casualties agree that total killed were about 102,000, differing mainly in that the Tokača study shows more Serb military casualties and fewer Serb civil-ian casualties than does the Tabeau and Bijak study. Rather ironically, the George Kenney figure of 60,000 through 1994 was thus apparently closer to the true figure than any of the more widely accepted numbers, an ironic result because Kenney was called a “revisionist” at the time. It is striking that the ratio of military to civilian victims was actually very high for a war in Twentieth Century Europe. Most modern conflicts produce far more civilian casualties than military ones.

As also discussed in detail in Chapter 7, the single greatest incident of mass killing during the war occurred in July 1995 when the Bosnian Serb Army took control of the “safe area” of Srebrenica in eastern Bosnia and at least 7,475 persons were subsequently killed, including one-third of all Muslim men enumerated in the April 1991 census of Srebrenica. Less than 1% of the victims were women, and 89.9% men between the ages of 16 and 60.31 While some of these men were killed in military action, thou-sands were executed. The result of the operation was to drive almost all Muslims from Srebrenica, which was almost 73% Muslim before the war; only a few hundred have since returned.

The criminality of many of these actions is clear. What may be ques-tioned, however, is whether the application of the term “genocide” to this action is appropriate. Since in the trial of General Krstić the ICTY did proclaim the mass killing at Srebrenica to be genocide, a discussion of this

30 BBC Worldwide Monitoring, 17 Dec. 2005; carried on Justwatch listserv, 17 Dec. 2005. See also “Genocide is Not a Matter of Numbers,” Bosnian Institute News & Analysis (www .bosnia.org.uk) 19 Jan. 2006, an interview with Tokača.

31   All figures are from H. Brunborg, T. Lyngstad and H. Urdal, “Accounting for Geno-cide: How Many Were Killed in Srebrenica?” European Journal of Population 19 (2003): 229–248.

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question must focus, first, on the reasoning of the Tribunal, specifically with the judgments of both the trial chamber and then the appeals chamber in this case.32 General Krstić, a General-Major in the Army of the Republika Srpska, was Chief of Staff/Deputy Commander, then Commander, of the Drina Corps of that army, which was the corps that committed the crimes at Srebrenica, at the time that those crimes were committed.

The Trial Chamber Decision in the Krstić Case

Genocide is defined in regard to specific “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” including killing members of the group or causing serious bodily or mental harm to them; the goal of bringing about the “physical destruc-tion in whole or in part” is important as well.33 It was undeniable that the Bosnian Serb Army had killed members of the group and caused bodily and mental harm to those who survived. The only question was that of intent: “whether the offences were committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”34

In regard to Srebrenica, this definition is more problematical than non-lawyers might realize. The original 1946 UN General Assembly resolution defined genocide as “a denial of the right of existence of entire human groups,” and it was said at that time that the victim of genocide was not the individuals killed but the group.35 But what counts as “the group” in this case? The Prosecution was inconsistent, referring at various times to the Bosnian Muslims, the Bosnian Muslims of Srebrenica and the Bosnian Muslims of Eastern Bosnia. The Trial Chamber agreed with the Defense that the proper group was the Bosnian Muslims, leaving then the ques-tion of whether the destruction of a part of that group would qualify as genocide.36

32 The ICTY has two levels, or chambers. The Trial Chamber hears cases and makes the initial decision in them; these decisions may be appealed to the Appeals Chamber, which is final.

33 Krstić trial judgment, para. 540. While the Krstić court uses the definition found in the ICTY’s founding statute, this is drawn directly from the relevant UN treaty definitions.

34 Ibid. Para. 544.35 Ibid. Para. 552.36 Ibid. Para. 560.

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Having made this determination, however, the Trial Chamber then contradicted itself by saying that

the killing of all members of the part of a group located within a small geo-graphical area . . . would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.37

Yet even annihilation of a small local group seems unlikely to threaten the larger “group as such,” already defined as the Bosnian Muslims, that is, the group itself (rather than the individuals that comprise it), which is the party to be protected from genocide. Further, the Bosnian Serb Army did not try to kill all members of the group, as mentioned by the court in its reasoning, but rather only males between ages of 16 and 60; although they were treated appallingly, women, small children and old people were transported out of Srebrenica. In this connection, the Trial Chamber referred to “the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a tradition-ally patriarchal society,” thus incorporating into its reasoning stereotypes about Bosnian society.38

William Schabas, perhaps the leading commentator on genocide in international law, criticized the Krstić trial decision on many of these grounds: that the unchallenged intent of the perpetrators was not to phys-ically destroy the group but rather to remove it from the territory; that the conclusion that in killing the men and boys of military age the intent was to eliminate the community as a whole rather than target potential or actual combatants was a “rather enormous deduction to make,” and that while the atrocities at Srebrenica “surely qualify” as crimes against humanity, “categorizing them as ‘genocide’ seems to distort the definition unreasonably.”39 However, through this reasoning, the Krstić trial cham-ber extended the definition of “genocide” from acts made with the intent to cause the physical “destruction of a group as such,” to covering acts

37 Ibid. Para. 590.38 Ibid. Para. 595.39 William Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judg-

ments of the International Criminal Court for the Former Yugoslavia.” Fordham Interna-tional Law Journal 25 (2001–2002): 23–53, pp. 45–47.

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made to remove an ethnic or religious community from a specific terri-tory, especially one of strategic importance.

The Appeals Chamber Decision in the Krstić Case

The defense appealed the findings of the Krstić trial chamber that geno-cide had occurred, in part on the grounds that the definition of the “part” of the protected group – men of military age in Srebrenica, as part of the Bosnian Muslims – was too narrow, and in part on the grounds that the Trial Chamber had enlarged the definition of genocide to encompass expulsion of a group from a territory, rather than their physical destruc-tion. The Appeals Chamber promptly made the issues less, rather than more, clear.

In regard to “part” of a protected group, the Appeals Chamber simply said that all that was necessary was that “the alleged perpetrator intended to destroy at least a substantial part of the protected group.” “Substantial part” was left undefined except by a purely political consideration: “If a specific part of the group is emblematic of the overall group . . . that may support a finding that the part qualifies as substantial.”40 What might “emblematic” mean in this context? Addressing this question, the Appeals Chamber said that

Srebrenica was important due to its prominence in the eyes of both the Bos-nian Muslims and the international community. . . . The elimination of the Muslim population of Srebrenica, despite the assurances given by the inter-national community, would serve as a potent example to all Bosnian Mus-lims of their vulnerability and defenselessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims.41

This finding conditions “genocide” on the purely political determination that even a relatively small portion of a protected group is so politically prominent or so strategically located that its removal from a territory, rather than physical annihilation, would symbolize the vulnerability of the larger group.

A subsequent ICTY trial chamber expressed “some hesitancy” about adopting this reasoning, “which permits a characterisation of genocide

40 Prosecutor v. Radislav Krstić, ICTY Appeals Chamber Judgment, 19 April 2004 (here-after, Krstić appeal), para. 12.

41   Krstić appeal, para. 16.

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even when the specific intent extends only to a limited geographical area, such as a municipality.” This Trial Chamber was “aware that this approach might distort the definition of genocide if it is not applied with caution.”42 Tomislav Dulić has noted that if local mass killings are defined as genocide, even the Holocaust becomes composed in part of many “indi-vidual genocides,” or local massacres.43 At that stage, the possibility arises of seeing reciprocal or “retributive” genocides when forces of antagonis-tic racial, ethnic or religious groups each commit a local massacre of the other’s people, even of their military forces.44 Yet at that point, what dis-tinguishes “genocide” from other ethnic, racial or religious mass killings?

The Trial Chamber Decision in the Krajišnik Case

The question of whether genocide occurred in Bosnia became even more complicated with the decision of the trial chamber in the case of Momčilo Krajišnik, one of the most important political actors among the Bosnian Serbs from 1990 throughout the war. According to the indictment against him,45 Krajišnik

held a prominent position in the Bosnian Serb leadership and was associ-ated with Radovan KARADZIC, Biljana PLAVSIC, Nikola KOLJEVIC, other members of the Bosnian Serb leadership, and other members of the joint criminal enterprise. He was a member of the National Security Council, the Expanded Presidency of the Serbian Republic of Bosnia and Herzegovina, the Main Board of the SDS and the Bosnian Serb Assembly, of which he was also President. By virtue of those associations, positions and member-ships, he had de facto control and authority over the Bosnian Serb Forces and Bosnian Serb Political and Governmental Organs and their agents, who participated in the crimes alleged in this indictment.

Krajišnik was convicted of extermination, murder, persecution, depor-tation and forced transfer, all as crimes against humanity, involving imposition of restrictive and discriminatory measures and the denial of fundamental rights; murder; cruel and inhumane treatment during attacks on towns and villages and within various detention centers; forcible dis-placement; unlawful detention; forced labor at front lines; appropriation

42 Prosecutor v. Milomir Stakic, ICTY Trial Chamber II, Judgment, 31 July 2003.43 Dulić, Utopias of Nation, pp. 18–19.44 See, e.g., P. Brass, “The Partition of India and Retributive Genocide in the Punjab,

1946–47: Means, Methods and Purposes,” Journal of Genocide Research 5 (2003): 71–101.45 Prosecutor v. Momčilo Krajišnik, Consolidated amended Indictment, 7 March 2002.

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or plunder of private property; and destruction of private property and of cultural monuments and sacred sites. Further, all of this was the result, the court found, of a “common criminal enterprise” involving Krajišnik and the other persons named above.46

Yet the court found that “none of these acts were committed with the intent to destroy, in part, the Bosnian-Muslim or Bosnian-Croat ethnic group, as such,” and thus that Krajišnik was not guilty of genocide or of complicity in genocide, seemingly inconsistent with the Krstić judgement. Krstić was not convicted of perpetrating genocide, because he personally did not have the intent to commit that crime, but rather of “aiding and abetting” genocide.47 Thus the ICTY has managed to decide that while there was not sufficient evidence to say that one of the main political leaders of the Bosnian Serbs perpetrated genocide or abetted in its perpe-tration, one of the leading Bosnian Serb army generals, who did not have the intent to commit genocide, nevertheless abetted the commitment of genocide. Further, the leading Appeals Chamber decision managed to say, that while the perpetrators of genocide try to exterminate entire human groups, and no such attempt was made at Srebrenica, genocide still occurred there.

The Decision of the International Court of Justice

The February 26, 2007 decision of the International Court of Justice in the case brought by Bosnia and Herzegovina against Serbia and Monte-negro48 simply adopted the finding of the ICTY in Krstić that genocide had occurred at Srebrenica, without discussing the reasoning behind that decision.49 It also decided that Bosnia and Herzegovina had not proved that the authorities in Belgrade had ordered the massacre, and indeed that “all indications are to the contrary: that the decision to kill the adult male population of the Muslim community of Srebrenica was taken by the VRS [Bosnian Serb Army] Main Staff, but without instructions from or effective control by” Serbia and Montenegro.50 For this reason, the ICJ

46 Krajišnik judgement, paras. 867–869.47 Krstić appeal, paras. 135–144.48 International Court of Justice, Case Concerning the application of the Convention on

the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007.

49 Ibid. Paras 296, 297.50 Ibid. Para. 413.

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found that Serbia had not committed genocide, incited the commission of genocide, conspired to commit genocide, or been complicit in the com-mission of genocide in Bosnia, though it had violated the Genocide con-vention by failing to prevent genocide in Srebrenica and by not arresting general Ratko Mladić.

“Genocide” in Bosnia?

Thus the ICTY and the ICJ have held that only the mass killings of Bosnian Muslim men at Srebrenica at the very end of the war constituted geno-cide (ICTY Krstić decision, finding adopted by ICJ); that while a general of the Bosnian Serb Army who helped organize those killings was guilty of complicity in genocide, he himself had not intended to commit genocide (ICTY, Krstić) and thus was not guilty of committing it; that a leading political authority of the Bosnian Serbs had no intent to commit geno-cide (ICTY, Krajišnik, referred to by ICJ); that Serbia neither ordered the Bosnian Serb Army to commit the murders at Srebrenica nor was it in a position to control the Bosnian Serb Army once the killings began (ICJ); but that regardless of whether it could have prevented the killings, Serbia should have tried to do so but did not. All of these judgments rest on the decision in Krstić to say that a massacre of men in a single location counted as genocide, because that location was important both symbolically and militarily. While genocide requires the intent to “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” international courts have yet to find that anyone actually had that intent – not Serbia (the ICJ decision), nor the Bosnian Serb leadership (Krajišnik), nor even one of the generals who carried it out (Krstić). Presumably, General Ratko Mladić had the intent to commit genocide, but only on a local level, and he has not yet been tried, much less convicted.

William Schabas, who had criticized the trial chamber decision in Krstić and concluded that calling Srebrenica genocide unreasonably distorted the term, seems now to have accepted that recent international crimi-nal tribunal decisions have expanded the concept beyond the definition adopted in 1948.51 Since legal scholars have long recognized (at least in the Common Law world) that the meaning of legal concepts is constantly

51 William Schabas, “The ‘Odious Scourge’: Evolving Interpretations of the Crime of Genocide.” Genocide Studies and Prevention 1 (2006): 93–106.

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changing,52 accepting the validity of the change is normal legal scholar-ship. But the problem is that “genocide” is not being used as a legal term, even by Schabas. Perhaps because his article was first given at an interna-tional conference in Yeravan, Armenia, organized by the National Com-mission for the Commemoration of the 90th Anniversary of the Armenian Genocide, Schabas ended his paper by concluding that “Debates about historic cases of genocide need to be reassessed in light of evolving case law” and that the widened definition cannot be “particularly comfort-ing to those who have tried to deny that the massacres of Armenians within Turkey in 1915 amounted to one of the greatest genocides of the Twentieth Century.”53

In making this comment, Schabas seems to be saying that a finding of “genocide” does not depend on facts fitting a definition, but rather can be found by altering the definition to fit facts. This position is contrary to one of the fundamental principles of the rule of law, that there is no crime without the punishable act first being defined by law (nulla cri-men sine lege). Such ex post facto criminalizations are prohibited in the United States by Article 1, Section 9 of the federal Constitution. Those who have tried to deny the Armenian genocide may actually find Schabas’s assessment quite comforting, since it seems to recognize that even that case cannot be called genocide unless one redefines the term precisely to achieve that goal.

But why stop with Armenians in Turkey, or Srebrenica? Why not recog-nize that the “population exchanges” between Greece and Turkey in 1923 and India and Pakistan in 1947 constituted, as Paul Brass has called the latter, mutual, “retributive” genocides?54 Surely the violent expulsion of 700,000 ethnic Germans from the Sudetenland by the end of 1945, accom-panied by between 19,000 and 30,000 dead, would also qualify,55 as might the less violent but still forced expulsion of more than two million more Germans from Czechoslovakia a year later. Even though one work on this case published in 2000 distinguished between “ethnic cleansing, popula-tion transfer and genocide” as using different means to achieve similar

52 A classic statement is Edward H. Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949).

53 William Schabas, “The ‘Odious Scourge’: Evolving Interpretations of the Crime of Genocide.” Paper for presentation at: “Ultimate Crime, Ultimate Challenge, Human Rights and Genocide”International Conference, Yerevan, Armenia, 20–21 April 2005.

54 P. Brass, “The Partition of India and Retributive Genocide in the Punjab, 1946–47: Means, Methods and Purposes,” Journal of Genocide Research 5 (2003): 71–101.

55 Data from Eagle Glassheim, “National Mythologies and Ethnic Cleansing: The Expul-sion of Czechoslovak Germans in 1945,” Central European Studies 33 (2000): 463–486.

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goals, if Schabas is right, and consideration of past cases needs to be con-ducted in terms of the widened definition of “genocide” recently adopted by international courts, it is hard to see how Beneš and the Czechs are not rendered genocidaires ex post facto.

Using evolving legal definitions of genocide to classify past cases is even more problematic when the issue would be one of adjudicating a criminal prosecution for genocide denial, since a defendant who held strictly to the 1948 definition could be pronounced guilty by judges who say that that definition of genocide is, as Richard Nixon might have put it, inoperative. In this context, we may recall that religious heresy often involves rejecting a later interpretation of a fundamental text.

Judicial Decisions: The Exegesis of Secular Heresy

My analysis argues that the Krstić decision that the mass killings at Sre-brenica constituted “genocide” is not in accordance with the definition of that crime under international law, and thus that neither are other deci-sions that relied upon it, including that of the ICJ. Literally, then, this arti-cle denies that the crime of genocide occurred at Srebrenica, even while acknowledging the gross criminality of the mass killings there. But if my analysis thus constitutes the criminal offense of “genocide denial,” new ground is being broken in modern, Western jurisprudence, by making it a crime to criticize a decision by a court. The literal language of the Coun-cil of Europe’s Additional Protocol to the Cybercrime Convention, and the law proposed to the EU parliament, however, does seem to mandate this result.

A pronouncement that is immune from criticism is thereby infal-lible, but infallibility is unknown to secular politics. It is also otherwise unknown to secular law. Indeed, the very fact that the Council of Europe’s language, if taken literally, leads to this result, means that the judgment of the international tribunal does not have the character of a judicial deci-sion, but rather is the exegesis of dogma. The immunity from criticism afforded to the judicial pronouncement is strong evidence that “genocide denial” laws are meant to punish secular heresy, since, uniquely, heresy laws act to ensure that a dogma may not be subjected to challenge.

Politicizing Mass Killing and Other Crimes Against Humanity

Instead of engaging in efforts to extend the concept of genocide in an ever-widening arc that is inherently politicized, it might be better to ask

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why the indicted and well-proved crimes against humanity of persecu-tion, expulsion, murder, and inhumane treatment are not sufficient to cover Srebrenica. Presumably, the answer is that this particular instance of mass killing was more reprehensible than other mass killings. Asser-tion of reprehensibility is a political tactic, however, which invokes what appears to be a timeless morality in the service of a temporary purpose. Human Rights Watch has asserted that genocide denial “is a form of des-ecration of the dead, a violation of one of the most basic human norms,”56 but the “desecration” of classifying the dead as victims of persecution or extermination rather than of “genocide” is not obvious. There is an added political value to proclaiming that victims died in “genocide” instead of (mere? ordinary?) persecution, extermination or massacre, but this accrues not to the dead but to those who claim to be entitled to ben-efit from their martyrdom. As Tzvetan Todorov puts it, “although nobody wants to be a victim in the present, many would like to have been one in the past. . . . If some community can claim convincingly to have been the victim of injustice in the past, then it acquires an inexhaustible line of credit in the present.”57

The term devised to deal with the unquestionable horrors of the Holo-caust is a powerful rhetorical tool for claiming the status of victim while imposing the status of victimizer, in both cases on groups rather than individuals. Precisely such rhetorical efforts were employed in the former Yugoslavia by various parties, notably by Serbs in regard to the mass mur-ders in the Independent State of Croatia (1941–45); but throughout the 1980s, there was a rhetorical contest of claims to be the true victims of genocide in the 1940s: Serbs (by Croats, Muslims and Albanians), Mus-lims (by Serbs), Croats (by Serb communists).58 In the 1990s, the rhetorics intensified, with claims by Muslims (Bosniaks after the fact) and Alba-nians of being victims of genocide at the hands of Serbs. The Muslims, who really did suffer the largest losses in the 1990s, were most successful in claiming victim status, as evidenced by the indictments in the ICTY.

Yet the unsuccessful claims by the Serbs, of having the murders of Serbs in the 1941–45 “Independent State of Croatia” (generally known by its Cro-atian acronym, NDH) recognized as having been “genocide,” gives pause

56 Human Rights Watch, Annual Report 2007, “Genocide Denial: Incitement or Hate Speech?” http://www.hrw.org/wr2k7/essays/shrinking/4.htm.

57 Todorov, Hope and Memory, p. 143.58 See Robert Hayden, “Mass Killings and Images of Genocide in Bosnia, 1941–45 and

1992–95,” in Dan Stone, ed., The Historiography of Genocide. Palgrave, 2007.

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for thought. Judged by absolute numbers, those numbers relative to the Serb population in the NDH, and the ideology of the Ustaša regime, the term “genocide” as defined in the 1948 convention seems more appropri-ate for the mass killings of Serbs, Jews and Roma in the NDH than it does for anything in the 1990s. However, commentators at the time, myself included,59 argued that the sudden invocation in 1990–91 of “genocide” in the 1940s was part of an effort by Serb leaders to stir up nationalist senti-ment amongst Serbs. In the event, the sanctification of the Serb victims of 1941–45 depended on the success of the political programs in which they were invoked, rather than the circumstances under which they died.60 The same, however, may be said for the claims about the Bosnian Muslim victims at Srebrenica in 1995. That is, both the nature of the claim (“geno-cide”) and its resolution are political questions, not factual ones, and thus by their very nature open to challenge, even though such challenges may be both discomforting and distasteful. Unless, that is, they are dogma, so that any challenge is heresy.

In fact, the politicization of the 1940s mass killings in the NDH raises the uncomfortable (not to say heretical) thought that genocide accusa-tion may itself be a form of hate speech, even when the situation invoked may very well fit the 1948 definition of genocide. The reason is that geno-cide accusations not only increase hostility against the accused group, but increase the aggressiveness of the group on whose behalf the claim is made. There is evidence from psychology in support of this heresy. In a carefully designed set of experiments, a group of Jewish-Canadian students at the University of Alberta were much more likely to assign collective guilt to Palestinians and to be less willing to “forgive” Pales-tinians when reminded of the Holocaust than those in the study sample who did not receive such a reminder. Further, this differential result only occurred when the Holocaust was invoked; a reference in a control study to the Cambodian genocide produced no such differentiation in Jewish- Canadian students’ allocations of collective guilt to Palestinians.61

59 “Recounting the Dead: The Rediscovery and Redefinition of Wartime Massacres in Late- and Post-Communist Yugoslavia,” in Rubie S. Watson, ed., Memory, History and Opposition under State Socialism (Santa Fe: School of American Research Press 1994); see also Bette Denich, “Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic Revival of Genocide,” American Ethnologist 21 (1994): 367–390.

60 See generally Katherine Verdery, The Political Live of Dead Bodies (New York: Colum-bian University Press, 1999).

61   Michael J. Wohl and Nyla R. Branscombe, “Importance of Social Categorization for Forgiveness and Collective Guilt Assignment for the Holocaust,” pp. 284–305 in Nyla R.

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Both of these examples, the political use of genocide accusations by Serb politicians in 1990–91, and the experimental results indicating that genocide allegations increase hostility towards other groups, bring into sharp question the presumption that genocide denial laws combat hate speech and thus reduce tensions between groups implicated in the asser-tions of genocide. To the contrary, genocide allegations themselves may serve to increase hostility, not diminish it, and thus endanger peace between individuals and between groups.

Heresy as Verbal Delict: The Criminalization of Politically Unpopular Thought

In the immediate aftermath of the ICJ decision that Serbia had not com-mitted genocide in Bosnia, the Helsinki Committee for Human Rights in Serbia issued a remarkable document, demanding that the Serbian legislature immediately pass legislation containing several noteworthy provisions. First, it is to be stated that “Any glorification, justification or relativisation of genocide and all other violations of international law is a crime which endangers the constitutional order, the present state of affairs and the future of the Republic of Serbia.” Then it is stated that “The respect of human rights and responsibility entail also a respect for victims, as well as activities which will ensure that all necessary measures have been undertaken to ensure the right to know the truth.” To this end, Serbia is to commit itself “to prompt a political and public dialogue which will not tolerate the justification of crimes.”62

The first noteworthy element of this draft is how very closely its struc-ture parallels the “verbal delicts” sections of the Criminal Code of the for-mer Yugoslav federation, which had been the targets of strong criticism by Amnesty International in the mid-1980s.63 A second is what appears to be the remarkable assertion that there actually is a single truth, while a third is the proposition that there can be a “public dialogue” that “will not tolerate” the assertion of positions so vaguely defined as “justification of

Branscombe and Bertjan Doosje, Collective Guilt: International Perspectives (Cambridge: Cambridge University Press, 2004), pp. 294–298.

62 Helsinki Committee for Human Rights in Serbia, Helsinki Bulletin no. 10, March 2007, draft “Declaration of Obligations of State Organs of the Republic of Serbia in Their Fulfill-ment of the Decision of the International Court of Justice,” emphases added.

63 E.g., Amnesty International, Yugoslavia: Prisoners of Conscience, pp. 27–28.

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crimes.” In 1985, Amnesty had adopted as “prisoners of conscience” people convicted on charges of “hostile propaganda,”

for writing a book or producing a film or pamphlet; for letters they had written; for writing articles or giving interviews that were published abroad. They had not advocated violence; they had merely expressed views disap-proved of by the authorities and considered by the courts to constitute an attack on Yugoslavia’s social and political order.

It is obvious that the verbal delicts of the human rights future may easily match those of the socialist past.

It would be banal to assert that “human rights” is a more worthy goal than “socialist self-management,” or “brotherhood and unity.” The flaw is precisely where Amnesty International itself placed it in 1985: that these vague formulations permit prosecution, even persecution, simply on political grounds. But this kind of banality is the flaw of the justifications for all regimens of punishing heresy, including the Inquisition. Whatever we may think now of the ideology that they enforced, to the inquisitors heresy was the gravest of all crimes and the greatest threat to society. The need to combat it led to the development of rules and proceedings that were heavily weighted towards the Prosecution.64 The denial of rights in the defense of officially sanctified “truth” has a long history.

In the end, the punishment of heresy is a manifestation of power by a political elite that holds its values and assumptions to be immune from challenge. That this kind of power is now justified by reference to protect-ing human rights rather than protecting Christianity, socialism or, for that matter, democracy itself, is not really very comforting.

64 See Steven Haliczer, Inquisition and Society in the Kingdom of Valencia, 1478–1834 (Berkeley: University of California Press, 1990), pp. 66–67.

CHAPTER TWELVE

WHAT’S RECONCILIATION GOT TO DO WITH IT? THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY) AS ANTIWAR PROFITEE

Reconciliation and Peace as Goals of the ICTY

In its resolution (827 [1993]) creating the International Criminal tribunal for the Former Yugoslavia (ICTY), the U.N. Security Council stated that it was “convinced” that the Tribunal would “contribute to the restoration and maintenance of peace,” and that it also “believ[ed]” that the tribu-nal would “contribute to ensuring that such violations [of international humanitarian law] are halted and effectively redressed.” This latter belief was quite clearly mistaken, as most of the events for which people were prosecuted by the ICTY took place after, even years after, the creation of the Tribunal. As for the restoration and maintenance of peace, the ratio-nale for that was perhaps the one stated jointly by the first President of the Court and first Prosecutor of it after the signing of the Dayton agreement, in 1995: “Justice is an indispensable ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution. Thus Peace and Justice go hand-in-hand.”1

In March 2005, thus ten years after this optimistic statement, a later prosecutor, Carla Del Ponte, said in Sarajevo that “The debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily

1 “The Tribunal welcomes the parties’ commitment to justice. Joint statement by the President and the Prosecutor.” http://www.icty.org/sid/7220. Oddly enough, the ICTY’s own web page rubric of “Achievements” of the Tribunal (http://www.icty.org/sid/324) refers to this statement as being only that of the President of the ICTY, even while giving reference to the version quoted. This might be simple negligence or perhaps a reflection of embarrassment over the potential impropriety of the extraordinary closeness between the President and the Prosecutor. John Hagan (203: 61) reports that President Cassese was “the invisible hand behind [Goldstone’s] selection as prosecutor” and that when he learned that Goldstone would accept the position, Cassese “faxed his fellow justices a message using the language of papal succession: ‘Habemus papum.’ ” What is interesting about this apparent lapse from the impartiality of justice is that neither Hagan nor any other human rights advocate/ supporter of the Tribunal has, to my knowledge, commented on it.

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life and media, and always politicised . . . the public is only interested . . . in politically, not judicially, defined truth.”2 Later that same year she did tell Goldman-Sachs (!) that “Our primary objective is to bring justice, thereby contributing to the reconciliation between peoples.” Her renewed opti-mism, however, may have been due to the fact that she was selling the value of the ICTY to a financial audience in London rather than to the supposed beneficiaries of the Tribunal’s actions in Sarajevo: noting that “the yearly cost of the Tribunal is less than one day of the U.S. military presence in Iraq,” Del Ponte said that “international justice is cheap.”3

In fact, if we compare the ICTY to other courts rather than to the U.S. military at war,4 the Tribunal is quite expensive, a point to which I return below. If the goal is reconciliation, the ICTY seems to have failed here, too, and Del Ponte’s 2005 comments in Sarajevo are important: the public is only interested in “politically defined truth.” The politics of this are not simple. Data from a good public opinion survey conducted by Roland Kostić (2007) throughout Bosnia and Herzegovina (B&H) in the summer of 20055 found that the position “One should never forgive” was supported by 61.2% of Bos-niaks, 36.6% of Croats, and 50.1% of Serbs; while “forgive but not forget” got 35.9% of Bosniaks, 58.4% of Croats, and 42.9% of Serbs. Thus, almost nobody agreed to “forgive and forget.” Even more tellingly, if hardly surpris-ingly, members of the group that suffered most losses were least inclined towards reconciliation, while those whose group suffered least were most inclined to do so. One of the findings of the poll was that there was strong within-group consistency, so the results indicate the continued importance, and social reality, of the ethno-national divisions within B&H.

What does “Justice” Have to Do with Reconciliation, Anyway?

The idea that “justice” is essential to reconciliation is commonplace; indeed, it is one of the founding assumptions, or better, presumptions, of the field of “transitional justice.” However, as is true of many other

2 http://www.un.org/icty/pressreal/2005/p944-e.htm.3 http://www.un.org/icty/pressreal/2005/speech/cdp-goldmansachs-050610-e.htm.4 Since the post-2003 death toll in Iraq is substantially higher than the death toll of all

of the Balkans wars of the 1990s, the comparison is also odd, to say the least. Considering British revelations about the planning for the invasion of Iraq even before 9/11, one won-ders whether Del Ponte might now see that joint US – UK enterprise as a Joint Criminal Enterprise that was clearly not deterred by the prospects of facing international justice.

5 Since I return to the data from this poll throughout this paper, further information on it is found in the Appendix.

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popular slogans, the meaning of reconciliation becomes less clear the more one looks at it. A “handbook” meant to promote reconciliation and “aimed primarily at policy-makers, politicians, civil society actors and practitioners in the field” though “also of interest to academia, the democracy assistance community and other bodies” (Bloomfield, Barnes, and Huyse 2003: 4) begins by saying that while “There is no short cut or simple prescription for healing the wounds and divisions of a society in the aftermath of sustained violence. Creating trust and understanding between former enemies is a supremely difficult challenge. . . . Examining the painful past, acknowledging it and understanding it, and above all transcending it together, is the best way to guarantee that it does not – and cannot – happen again.” These authors see reconciliation as both goal and process, but explicitly focus only on processes. Kostić, who focuses instead on the goal and with the ICTY firmly in mind, sees the first two goals of reconciliation as achieving “mutual recognition of past suffering by former antagonists as well as a common understanding of the past” and “a shared sense that justice has been done” (2007: 33). Similarly, Jack Snyder & Leslie Vinjamuri (2003/04) argue that “Trials do little to deter further violence and are not highly correlated with the consolidation of peaceful democracy,” while amnesties and other “pragmatic” approaches are more successful.

If the goals of reconciliation involve reaching a common understand-ing of the past and also mutual recognition that justice has been done, criminal courts do seem, at first blush, a logical mechanism to achieve these goals. Yet, is there actually any reliable evidence that international criminal tribunals have ever fostered peace and reconciliation? Nurem-berg is often cited, but there is an important difference: the Nuremberg Tribunal operated from late 1945 until late 1949, with the primary defen-dants convicted and executed by October 1946. Thereafter, the business of rebuilding Germany proceeded, with war crimes trials not being rein-stituted until the 1960s. The Tokyo Tribunal is hardly a promising model, since its procedures could not pass even a minimal review for fairness, as is well laid out in Justice Pal’s dissent. (That this supremely flawed process gave us the doctrine of command responsibility should be troubling). In any event, the Tokyo Tribunal started its trials in early 1947; the major defendants were hanged in late 1948, and ten years later all who had been convicted by the Tokyo processes had been released from prison.

Thus the Nuremberg Tribunal lasted for less than four years, the Tokyo one even less time, and in both cases the international community then helped the countries whose leaders had been defendants to recover from

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war damage and develop. By contrast, the ICTY is still going on, 20 years after the start of the conflicts, more than 15 years after the end of the Bos-nian and Croatian wars, and 12 years after Kosovo. To make the contrast even more striking, the international community has expressly and pur-posefully hindered the post-war reconstruction and development of B&H, Croatia and Serbia because of supposed failures to fully accommodate the demands of the ICTY.

We might try a thought experiment: imagine that the victorious allies in World War II had acted like their predecessors at Versailles in 1919, and imposed guilt and reparations on Germany and Japan, keeping them under sanctions for the next twenty or so years. John Maynard Keynes’s famous condemnation of the devastating consequences of the Versailles policy (1920) was prescient, and few doubt that the consequent impover-ishment of Germany was a key factor in the rise of extremist politics there a decade later. It is hard to imagine that either Germany or Japan would have developed as they have had they been purposefully kept isolated and impoverished for two decades after 1945.

A further thought experiment may be useful. Imagine that after Gen-eralissimo Franco finally had the good grace to die, in 1975, the US and the major West European powers had conditioned Spain’s integration into NATO and the European Community on prosecution of the major surviv-ing actors in Franco’s regime, and had in the meantime applied economic sanctions as “conditionality” for bringing about this prosecution. There is little doubt that Spain’s post-Franco development would have been hindered, and considering that the last monuments to Franco were only removed in 2008, it is not unlikely that such isolation might have re-started the Spanish civil war. It has only been since the consolidation of Spanish democracy that the history of the civil war and the Franco regime is now open to question. Similarly, it is only decades after the transitions from authoritarian regimes in Chile and Argentina that the surviving actors of those regimes are being brought to account. Is it really likely that it could have been done earlier, without re-starting civil strife?

It is interesting, and troubling, that proponents of “transitional justice” generally do not question the assumption that the success of an interna-tional criminal tribunal can be measured by bringing leaders like Milošević to trial and establishing their command responsibility for atrocities. At what political, economic and social costs, and to whom? Is it appropri-ate to condemn millions to poverty and political isolation because we demand “justice”? Again, Keynes’s (1920: 225) condemnation of the puni-tive policies of the Versailles treaty is appropriate:

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The policy . . . of degrading the lives of millions of human beings, and of depriving a whole nation of happiness should be abhorrent and detest-able . . . Some preach it in the name of Justice. In the great events of man’s history, in the unwinding of the fate of nations Justice is not so simple. And if it were, nations are not authorized, by religion or by natural morals, to visit on the children of their enemies the misdoings of parents or of rulers.

Despite the overwhelming rhetoric in “transitional justice” circles about the necessity of accountability for reconciliation, I am aware of no cases in which externally-imposed criminal trials had this effect, at least if those trials were not quickly over and the countries whose leaders had been tried then helped to develop. It is certainly not true in the former Yugosla-via. Quite to the contrary: the ICTY’s actions are among the major causes of mutual recrimination within most successor republics and between them. In the Balkans, the main local political beneficiaries of the ICTY have been the most nationalistic parties in Serbia, Croatia and B&H, not the democratically-oriented ones.

In this article, I analyze, first, the generally hostile attitudes of people in the former Yugoslavia to the ICTY, and specifically the radically differ-ent views of the trial of Milošević held by the members of the different national groups in B&H and elsewhere in ex-Yugoslavia. I then describe the use made of the Tribunal for inter- and intra-republican political maneuvers, and show that the primary beneficiaries of such maneuvers are the political parties most strongly opposed to the ICTY and its actions. Finally, I “follow the money,” looking at who benefits most financially from the operations of the ICTY. If the question is, to paraphrase that noted philosopher Tina Turner, “what’s reconciliation got to do with it?” the answer is “not much;” but there are certainly people who have done very well by claiming to be doing good.

The Reception of the International Criminal Tribunal in the Former Yugoslavia

Gaining agreement on almost any political topic in the formerly Yugoslav republics is difficult, but the ICTY has nearly achieved it: majorities of almost all of the major national groups dislike the Tribunal. A February 2002 public opinion poll throughout the Balkans found that the ICTY had the trust of 8% of people in Serbia, 21% of people in Croatia, and 22% of people in Macedonia. In B&H the situation was more mixed: the ICTY was trusted by 4% in the Serbian part but 51% in the Croat – Muslim region (the breakdown between Croats and Muslims not being specified;

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but see below on the 2005 survey).6 However, a 1999 interview study of B&H judges and prosecutors (Human Rights Center 2000) found that Cro-ats were much more critical of the ICTY than were Bosniaks. The only place where the ICTY was popular in 2002 was in Kosovo, but that was before the Tribunal had indicted any Kosovo Albanians. By early 2005 this had changed, so that when the Prime Minister of the Kosovo provisional government was indicted, the Albanian population staged mass demon-strations and at least one bomb was thrown at the UN Kosovo mission.7 Essentially, the ICTY has enjoyed some popularity amongst various peo-ples in ex-Yugoslavia until one of their own heroes has been indicted, at which point the popularity of the Tribunal drops remarkably.

Serbian journalist Mirko Klarin (2009), long a member of the so-called “Other Serbia” (druga Srbija) and writer for papers close to the human-rights-oriented part of the Serbian political spectrum, offers a similar analysis of these same data, but makes some additional points. One is that in every post-Yugoslav republic, the general rule is that minorities (e.g. Serbs in Croatia, Hungarians in Serbia) have a better view of the ICTY than the majority (Serbs in Serbia, Croats in Croatia etc.). Another is that “the media in the states and entities of the former Yugoslavia have been more interested in giving voice to (their) accused than to (their) victims.” So much for the idea that the ICTY gives voice to victims! Or maybe it does, but who broadcasts them? Or watches the broadcasts? Klarin’s con-clusion is that “If the impact of the ICTY in the countries of the former Yugoslavia were to be measured exclusively by the poor public perception of the Tribunal that prevails, perhaps the best course of action would be to shut its doors without waiting for the end of its mandate.”

Even better public opinion data is available from the approximately 2,500-person survey conducted by Roland Kostić (2007) in B&H in the summer of 2005 described in the Appendix and referred to earlier. The data on “forgiveness” have already been given. Other key findings:

Definition of the war: “Civil war” by 3.7% of Bosniaks, 16.7% of Croats, 83.6% of Serbs; “Aggression” by 95.1% of Bosniaks, 73.2% of Croats, 9% of Serbs;8

6 http://archive.idea.int/press/documents/SEE_Survey_Press_Release_English.pdf.7 Http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/434203.stm.8 I should note that the late Dennison Rusinow, a leading scholar of the former Yugo-

slavia until his untimely death in 2006, and a native Floridian, referred to the American war of 1861–65 as the “War of Northern Aggression.”

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Military forces as defensive: ARB&H: Bosniaks 91.5%, Croats 1.2%, Serbs 1.2%; HVO [Croatian Defense Council]: Croats 92.7%, Bosniaks 5.9%, Serbs 1.8%; VRS [Army of Republika Srpska]: Serbs 89.6%, Bosniaks 0.1%, Croats 0.1%.

As for the ICTY:

ICTY as a precondition for just peace and normal relations: Totally or somewhat agree: Bosniaks 80.3%, Croats 57.1%, Serbs 15.8%; Somewhat or totally disagree: Bosniaks 16.1%, Croats 38.7%, Serbs 79.7%;

ICTY trials as fair: totally or somewhat agree: Bosniaks 67.9%, Croats 43.2%, Serbs 13.5%; totally or somewhat disagree: Bosniaks: 29.1%, Croats 51.9%, Serbs 79.2%;

ICTY is primarily a political court and obstruction to peace: totally or somewhat agree: Bosniaks: 32.1%, Croats 49.2%, Serbs 79.2%; totally or somewhat disagree: Bosniaks 58.8%, Croats 40.6%, Serbs 13.2%.

Milošević and other national leaders: utterly unsurprisingly, opinions on the wartime national leaders also differed primarily by national group. Thus Milošević was viewed as “very positive” or “somewhat positive” by 0.6% of Bosniaks, 1.6% of Croats, but 64.2% of Serbs; and as “very nega-tive” by 97.2% of Bosniaks and 90.2% of Croats, while “somewhat neg-ative” or “very negative” by 23.7% of Serbs. Alija Izetbegović was given positive ratings by 77.2% of Bosniaks, 7.7% of Croats and 2.7% of Serbs, while his negatives were 20.4% of Bosniaks, 84.2% of Croats, and 85.3% of Serbs. Franjo Tudjman’s positives: 3.4% of Bosniaks, 78.8% of Croats, 2.9% of Serbs; while his negatives were 94.3% of Bosniaks, 14.7% of Croats, and 67% of Serbs.

Tzvetan Todorov (2009: 457) has noted that the South African TRC suc-ceeded because it managed “to establish the truth, not a scientifically or legally confirmed truth based on collecting material evidence, but one that resides in an agreement between the two parties.” These B&H data indicate that there is no agreement on what constitutes the “truth” of the wars, or of events in them, despite the claims of the ICTY to have estab-lished “the facts.” But the reason for that is that there has never been an agreement between the peoples (plural) of B&H about forming a common state, much less about how to run it – that was, after all, what the war was all about.9 To put it another way, the success of the SATRC was due to

9 I am aware that there are other interpretations. Mine is argued at length in other articles (e.g., Hayden 2005 and 2007). Should anyone wish to counter, I request that they

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the Afrikaners accepting “surrender without defeat” in return for keeping their privileges and avoiding criminal liability (see Gilomee 1997; Todorov 2009), but neither the Bosnian Serbs nor the Herzegovinian Croats were defeated, neither did they surrender (since the nominal B&H state cre-ated by the Dayton constitution still does not control them), and thus no “truth” about the character of the wars has been agreed to.

The lack of agreement on “truth” makes the task of the ICTY impossible, since whatever it does will be rejected by most members of at least one group. With specific reference to the Milošević case, when we recall that 83.6% of Bosnian Serbs saw the war as a civil war, and 89.6% of them saw the Army of the Republika Srpska as acting as a defensive force, not an aggressive one, it should be fairly obvious that trying Milošević and other Serbs leaders for a “joint criminal enterprise” of supporting the Bosnian Serbs politicians who formed the RS and helping their military as opposed to those of the Muslims and Croats, will be rejected overwhelmingly by Bosnian Serbs, and by other Serbs as well. Since Milošević was indicted in 1999, transferred to the ICTY in mid-2001, and his trial started in early 2002, B&H respondents in June of 2005, when the trial was well underway, were hardly answering in a vacuum of information about him or the case. Recall that the Krstić trial, pronouncing the mass killings at Srebrenica to have been genocide, had concluded in 2001 and the appeal in that case ended by April 2004, more than a year before the survey was taken. The ICTY may pride itself as having “established the facts,” but clearly, the peoples (plural) of the region do not all agree with the Tribunal in that regard.

Justice for Victims and Survivors?

Another achievement claimed by the Tribunal is “bringing justice to vic-tims . . . By holding senior individuals responsible for the crimes commit-ted in the former Yugoslavia, the Tribunal is ensuring that the victims can see that the individuals who are responsible for their suffering are convicted by an international criminal court and sent to prison.”10 Empiri-cal research shows that this claim is misplaced. Survey research by John

provide me first with clear evidence that the majority, or even a plurality, of Bosnian Serbs and Herzegovinian Croats ever have accepted incorporation into a Bosnian state that has power directly over them. I know of no such evidence.

10 http://www.icty.org/sid/324#bringing.

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Hagan and Sanja Kutnjak Ivković (2006) in 2000 and 2003 showed that over that time, as convictions for the siege of Sarajevo were delivered by the ICTY, Sarajevans’ opinion of the Tribunal actually declined. However, in the 2003 survey 70% of respondents said that they had personally been victims of war crimes. Considering that Sarajevo had 500,000 inhabitants before the war, and that total casualties during it were about 10,000 dead and half of them were military personnel,11 it would not be possible for 70% of the population to have been victims of what any reasonable court could consider to be war crimes. This is not to doubt the sincerity of the belief of the respondents that they had been victims of war crimes, but rather to point out that no court could possibly satisfy such demands for “justice.”

A similar finding was reported in an interview study by Janine Clark (2009). She found that people who had suffered most were the least sat-isfied with the ICTY, since they had had the greatest expectations of it. The victims’ expectations not only were not met, they could not possibly be met. Clark also finds that “the truths established by the ICTY are not universally accepted truths but rather partially contested truths, which compete with each side’s own victim-centred narrative” (Clark 2007: 483). Jelena Subotić (2009: 148–149) reports that Bosniak victim groups were hostile to the idea of a B&H TRC on the grounds that they had no desire to reconcile with their victimizers. Recalling Kostić’s finding of strong inter-nal consistency of views within the national groups in B&H but inconsis-tency between them, it is clear that the claims that the ICTY’s actions can aid “reconciliation” are unlikely to have much empirical support.

Neither is there clinical support for the idea that the trials provide psychological relief for victims. To the contrary, a study on precisely that point (Mendeloff 2009) indicates that there is little support for the posi-tion that trials either help victims (by affording them relief ) of damages them by revictimization.

By this stage, while there is still substantial rhetoric from the people who have vested interests in international criminal courts about the neces-sity of reconciliation for peacemaking (recall the hortatory statements to this effect by ICTY judges and prosecutors cited above), there is very little empirical support for this position. Even a “Handbook for Reconciliation

11 Sarajevo casualty numbers are from a report prepared for the Milosević case by the Prosecutor’s expert witness Ewa Tabeau: http://www.icty.org/x/cases/slobodan_milosevic/prosexp/bcs/mil-rep030818b.htm.

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after Violent Conflict” issued by the International Institute for Democracy and Electoral Assistance of Sweden (Bloomfield, Barnes & Huyse 2003: 106) is very cautious on this, saying that “Retributive justice, especially in the context of a post-conflict society, is at best plagued by certain short-comings and, at worst, may endanger reconciliation and democratization processes.” This raises an obvious question: if there is little evidence that international criminal trials actually do aid in reconciliation, and substan-tial evidence that they may actually hinder peace, why are they still being promoted so widely, such as by the creation of the International Crimi-nal Court (ICC)? One way to approach this question is to look at whose interests actually are being served by the existence of these courts, the question to which we now turn.

So Who Actually Does Benefit from the ICTY?

There are two groups of people, at least, who unquestionably have benefit-ted from the existence and actions of the ICTY, yet neither has been much analyzed as being such beneficiaries. One is local politicians in the former Yugoslavia, especially those who have opposed the ICTY, at least in public. Another is composed of those people who have made a very good living out of either working in the Tribunal or being strong supporters of it. These last include human rights groups and other NGOs which have used inter-national justice as the basis for their existence, and academics who have developed specialties in transitional justice and its associated fields.

“Hijacked Justice”

There is one recent study of how local politicians in the former Yugoslavia have “hijacked” the ICTY to serve their own ends, Jelena Subotić’s book (2009) of that title. By this she means that while local politicians have been compelled by international pressure to meet the demands of the ICTY, they almost never acknowledge a moral imperative for doing so but rather stress pragmatic, practical grounds: not that it is the morally right thing to do but rather the only practical thing to do. Even Serbian Prime Minister Zoran Djindjić, who arrested and extradited Milošević and was assassinated at least in part because he was cooperating with the ICTY, is criticized by Subotić (2009: 45–46) for having expressed pragmatic reasons rather than moral ones for that cooperation. Yet she also notes (2009: 47) “remarkable” steadiness in Serbian popular opinion that citi-

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zens supported cooperation with the ICTY only on pragmatic grounds, not moral ones. To expect politicians who must face electorates to act contrary to the firm beliefs of a majority of their citizens is naive.

Even more telling is the fact that the very government that extradited Milošević to the Hague stopped broadcasting the trial on state television because the trial made the government look bad. In fact, it was Milošević’s own party, the SPS (which he continued to head), that demanded that the broadcasts be resumed. In part, the problems of public perception were caused by what seemed an extraordinarily inept performance by the pros-ecutors, and often very well-performed statements by a defendant who seemed much better briefed on events in the region than was the prosecu-tion, and also capable of upsetting witnesses with surprise evidence. Simi-lar arguments have been about the uses made of the ICTY by right-wing parties in Croatia (Peskin & Boduszynski 2003; Jović 2009).

Yet why would anyone have expected televising the trial to do any-thing other than boost the popularity at home of the defendant? Again a Versailles parallel is relevant. At the conference, the British and French wanted to try the Kaiser and a long list of German military and political figures, but this was rejected by the Americans. In the words of James Scott Brown (1921: 254), American legal advisor at Versailles, “we can imagine the feelings of the American people if the fortunes of war had permit-ted Germany to demand that General Pershing . . . should be handed over to the enemy.” He also argued that “Heroes are sometimes made of very cheap stuff, and it apparently takes but little persecution to make a hero of a monarch” (Brown 1921: 246). Brown pointed out that the Kaiser had been discredited politically, which was the crucial point, and was also true of Milošević, except that the trial in the ICTY gave him opportunity to gain some measure of political rehabilitation.12

“Following the Money:” Doing Well by Claiming to be Doing Good

Taking a cue from Woodward & Bernstein in their investigation of the Watergate scandal, I think it vitally important to “follow the money” when

12 Rather ironically, his former party, the SPS, is, in January 2011, part of the govern-ment, with his former close associate Ivica Dačić Minister of the Interior. As of early Janu-ary 2010, it was reported that Dačić’s name had been removed from the list of Milošević associates banned from entering the U.S., so that he could be invited to the National Prayer Breakfast.

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considering the ICTY. By doing so, we can see the groups of people who unquestionably benefit from the activities of the ICTY, and very few of them are in or from the former Yugoslavia. These financial interests are, I suspect, a primary reason that the Tribunal continues to exist, twenty years after the first of the actions it was created to deal with.

Some comparisons to start with. To give an American example, in 2007–08, the budget of the Unified Judicial System of Pennsylvania was approxi-mately $370 million, for a system with four levels of courts in 60 judicial districts, and about 1600 employees.13 Pennsylvania had about 12 million inhabitants at the time and the courts handled about 278,000 criminal cases and 120,000 civil cases.14 For its part, the ICTY’s 2006–07 budget was $276 million and its 2008–09 budget $342 million, with about 1100 staff members in 2009.15 As of November 2009, the ICTY had 40 accused in 17 on-going cases, and had earlier concluded proceedings against 121 accused in 86 cases.16 Since its founding in 1993, the ICTY has handled a total of 161 defendants in a total of 103 cases, for a total budget, 1993 – 2008–09, of $1,557,690,022; or $9,675,093 per accused!17 It is estimated that by the time it shuts down, the ICTY will have spent $2.3 billion (Ford 2010), which will work out to about $14,000,000 per accused.

Let us grant that the comparison is imperfect, because the ICTY sup-ports its own detention center and investigators, and handles exclusively high-profile, complex cases.18 Perhaps a better way to look at the interna-tional spending on the ICTY is to compare it with international spending on rebuilding the former Yugoslavia, including reconstructing political systems (presumably meant to be based on reconciliation) and peace between the formerly warring republics and peoples. The task is immense: according to the World Bank, during the war, production fell by 90%, GDP fell by 80%, and half of the population was displaced; the economy is still

13 Date from Annual Reports of the Administrative Office of Pennsylvania Courts and “Court Finances Fiscal Year 2007–08,” both available on the website of the Unified Judicial System of Pennsylvania, Annual Report 2007, http://www.aopc.org/T/AOPC/PublicInfo/AnnualReports/AnnReport2007.htm.

14 Data from “2008 Caseload Statistics of the Unified Judicial System of Pennsylvania,” available at http://www.aopc.org/T/AOPC/ResearchandStatistics.htm.

15 Date from ICTY website, “The Cost of Justice,” http://www.icty.org/sid/325.16 Date from ICTY website, “Key Figures,” http://www.icty.org/sections/TheCases/

KeyFigures.17 ICTY, “The Cost of Justice,” http://www.icty.org/sid/325.18 On the problems of comparing ICTY costs to those of other courts, see D. Wippman

2006., “The Costs of International Justice,” 100 Am. Jour. Comp. L. 861 (2006).

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only at 70% of its prewar level, with a per capita income of $1540.19 Major actors have been:

The World Bank: since 1996, the World Bank has committed $1.31 billion directly to rebuild infrastructure and to promote growth,20 thus less than total ICTY budgets since 1993. World Bank aid has included $30 million to modernize the educational system, $25 million for the rehabilitation of hospitals and clinics. Thus, each year, the ICTY gets about four times the total amount invested by the World Bank in B&H’s hospitals and clinics.

United Nations Development Program (UNDP): One of the primary UN aid agencies, UNDP spent a total of $181 million in B&H between 1996 and 2009.21 Comparison to ICTY: total UNDP expenditures since 1996 are about 8.4% of the ICTY budget since 1993; and 38% of the ICTY budget for 2008–09 alone.

United Nations High Commission for Refugees (UNHCR): As of January 2009, approximately 200,000 IDPs and other persons of concern remained in B&H,22 and 427,823 in Serbia.23 The primary agency charged with assisting them, UNHCR, had a 2008 budget of $24,000,000 in Serbia24 and $6,200,000 in B&H.25 Thus, combined, the total UNHCR budget for assist-ing more than 600,000 refugees and IDPs in the two countries with the largest populations of such persons, was about 8.8% of the ICTY budget for 2008–09.

Organization for Security & Cooperation in Europe (OSCE): The OSCE is mandated as the key institution for building democratic political institu-tions in B&H, Kosovo and the rest of the region. Its budget for 2008 for all of Southeastern Europe was 66.3 million Euros, or about $100 million, thus less than the ICTY for that year. Comparison to ICTY: The OSCE mission

19   http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/BOSNIAHERZEXTN/0,,contentMDK:20629017~menuPK:362034~pagePK:141137~piPK:141127~theSitePK:362026,00.html.

20 Specifically, US$ 1.24 IDA credits; US$ 25 million in IDA grants, US$ 18.3 million in GEF grants; and US$ 25 million IBRD loan) to BH through 62 projects; http://web.world-bank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/BOSNIAHERZEXTN/0,,contentMDK:20629017~menuPK:362034~pagePK:141137~piPK:141127~theSitePK:362026,00.html.

21   UNDP B&H Info Pack 2010, p. 10; available at http://www.undp.ba/index.aspx? PID=3&RID=1.

22 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48d766.23 http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48d9f6.24 UNHCR Global Report 2008 – Serbia, http://www.unhcr.org/4a2e14ee2.html.25 UNHCR Global Report 2008 – Bosnia, http://www.unhcr.org/4a28d1012.html.

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to B&H had a budget of about $15 million that year, perhaps 10% of that of the ICTY.26

Office of the High Representative (OHR): The Dayton peace agreement that ended the war in Bosnia and Herzegovina created the OHR to oversee B&H’s transition to peace and stability. OHR is the key international civil-ian institution in B&H and is effectively the only governmental authority that reaches all of the country. Its budget in 2008/09 is about 11.3 mil-lion Euros with a staff of 30 internationals and about 183 local personnel.27 Comparison to the ICTY: the OHR budget is about 10% of the annual budget of the ICTY.

Unlike Carla Del Ponte, I do not think that the ICTY is “cheap,” especially when compared to what has been and is being spent on efforts that might actually bring benefit to the people who live in the former Yugoslavia. And actually, I can say nothing more about the “justice” of such expenditures on the ICTY, compared to other, more beneficial uses – res ipsa loquitur.

So – who does benefit from “international justice”? One obvious cat-egory of beneficiaries is people who work for the Tribunal. The ICTY does not publish its salaries, but does say that “Staff are offered a highly competitive salary (which is not subject to Dutch income taxes) with a yearly increment, and if entitled, a dependency allowance. Furthermore, the Tribunal offers an extensive medical and pension plan, 30 days of annual leave and 10 official holidays a year.” ICTY judge Alphons Orie was quoted as saying in 2008 that his salary of 150,000 euro (233,820 dollars) was “very nice.” David Wippman, generally an advocate of international courts, acknowledges that the costs of the Tribunal are high and says that “Whether we are getting value for money depends on the extent to which one believes that the trials serve their purposes, which include not just justice for victims, but larger societal goals, such as deterrence and national reconciliation” (Wippman 2006: 880). As I have noted, there is very little evidence that any of these larger goals are being served.

Another category of beneficiaries would have to include the large num-bers of legal academics who have gotten grants and consultancies to pro-mote international justice. There are numerous professors dealing with transitional justice journals and conferences devoted to it, and the like.

26 Figures from OSCE, Financial Report and Financial Statements for the year ended 31 December 2008 and the Opinion of the External Auditor, http://www.osce.org/item/39948 .html.

27 http://www.ohr.int/ohr-info/gen-info/default.asp?content_id=38608.

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I have no way of even estimating how much this might add up to, though some entrepreneurs have turned supporting war crimes prosecutions into substantial businesses, such as the Public International Law & Policy Group in Washington.28 Since NGOs do not have to publish their funding amounts and sources, the size of such actors is hard to know.

Yet another group of beneficiaries of transitional justice institutions are those itinerants who have been called “the post-conflict justice junk-ies” by Elena Baylis (2008), those mainly young lawyers who engage in a kind of ambulance chasing on a massacre scale, going from Kosovo to the Hague to East Timor to Freetown to Cambodia to Arusha, or combi-nations thereof. Baylis is highly critical of the lack of local knowledge of such people and of their tendency to claim false expertise and otherwise over-reach; she ends (2008: 389) by asserting that “the international com-munity should support and facilitate trials in national courts” rather than in international tribunals or hybrid institutions.

Conclusions: International Justice as Antiwar Profiteer

If transitional justice is not about reconciliation – and it is difficult to argue that it is – and the beneficiaries are mainly people other than those victims in whose name the enterprise claims to operate, why do inter-national tribunals exist? Perhaps I have been studying the international involvement in the Balkans for so long as to have become cynical,29 but it seems to me that the utility of the ICTY to those who pay for them is primarily as a tool of politics. Clausewitz’s famous line that “War is a mere continuation of politics by other means” comes to mind: far from being an instrument of reconciliation, the ICTY is instead a mechanism for con-tinuing the war by other means. For the NATO powers, the wars seem to have been utilized primarily as a way to expand NATO and exclude Russia from the Balkans for the first time since 1878 (see Gibbs 2009). For politi-cians in the region, the ICTY has served as a convenient way to main-tain nationalist tensions, either by claiming that it legitimates a grievance

28 See http://www.publicinternationallaw.org/areas/justice/tribunals/index.html.29 However, not sufficiently cynical to avoid some amazement at the various machina-

tions recounted in Cees Wiebes 2003 study, Intelligence and the War in Bosnia, 1992–95, a work by a very serious Dutch intelligence studies academic, even as Wiebes helpfully pro-vided confirmation of and further details on US and other major powers’ activities in Bos-nia that all of us studying the region had heard about but could not ourselves confirm.

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(e.g. “genocide” at Srebrenica)30 or perpetrates persecution of defenders of each besieged nation. That “lack of cooperation” with the ICTY has been used to justify continued sanctions on the most impoverished region in Europe is simply perverse; that such sanctions are applauded by organiza-tions that supposedly are guardians of human rights, even more perverse (has anyone ever noticed the oddity that an organization named Amnesty International is now a strong supporter of international prosecutions?).

So much for those who pay for the Tribunal. Those being paid are another matter. A well-known article in the law and social science lit-erature (Blumberg 1967) called the practice of criminal law in the USA a “confidence game,” noting that the social structures of the courts and of the career patterns of those who work in them mean that rather than being arenas of adversarial proceedings, American criminal courts have become machines in which defense attorneys and judges, as well as pros-ecutors, cooperate to get almost all defendants to plead guilty rather than exercise their rights. The court insiders also cooperate to ensure that the defense attorneys are paid. Finally, even the external specialists who are supposedly there to ameliorate the system (e.g. psychologists, social workers) are co-opted into the system of disposing cases by getting virtu-ally everybody to plead guilty to something. The ICTY may be analyzed in similar terms, since even the human rights organizations that focus on it

30 I am aware that putting scare quotes around the word “genocide” when linked to Sre-brenica might make publication of this article a criminal offense in the European Union, as “denying” or “minimizing” genocide, so let me be clear: I have no issue at all with the figures on casualties at Srebrenica found to have been killed in the various cases on the matter in the ICTY, nor that these mass killings constitute both violations of the laws and customs of war and of international humanitarian law; they simply do not also meet the definition of genocide in the statute of the ICTY. The key failing is the necessity to prove intent to destroy a group “as such” by their physical destruction, “in whole or in part.” The “in part” qualification is at issue, since the 7,000 men killed at Srebrenica constituted less than ½ of 1 percent of the Bosnian Muslim population, and the jurisprudence of the Tribunal required that for genocide, the numbers involved would have to constitute a “substantial part” of the targeted group. The Appeals Chamber of the ICTY decided in the Krstic case that this small percentage was sufficient because “If a specific part of the group is emblematic of the overall group . . . that may support a finding that the part qualifies as substantial,” and that “Srebrenica was important due to its prominence in the eyes of both the Bosnian Muslims and the international community. . . . The elimination of the Muslim population of Srebrenica, despite the assurances given by the international community, would serve as a potent example to all Bosnian Muslims of their vulnerability and defense-lessness in the face of Serb military forces. The fate of the Bosnian Muslims of Srebrenica would be emblematic of that of all Bosnian Muslims” (both quotes from the Krstic appeal decision, paras 15 and 16). Since I do not accept that genocide should be determined on the basis of publicity campaigns, I do not accept that reasoning. See Hayden 2008.

what’s reconciliation got to do with it? 283

do so to advance the cause of the Tribunals, not to ensure that the rights of defendants are protected.

Using the term “antiwar profiteers” will surely cause outrage from those who believe that they are doing the secular humanist’s equivalent of God’s work, but if those who profit from wars are war profiteers, what can we call those who profit from being anti-war? Indeed, it is not even clear that all human rights organizations are anti-war. After all, in 1999, Human Rights Watch was proud of the fact that human rights organizations had, at least in their view, pressured NATO countries into attacking Yugoslavia,31 an act of classic military aggression under standard principles of interna-tional law. When considering whether NATO might have itself committed violations of international humanitarian law and/or the laws and customs of war, Human Rights Watch did call for an investigation, but not an inde-pendent investigation. Rather, it called for NATO to investigate its own actions, with the goal of having them “consider the need to alter targeting and bombing doctrine,” but not with an eye towards prosecutions.32

Of course, the term profiteering is a pejorative one, implying that the profits were taken in an improper cause. Surely the protection of human rights cannot be seen as such, and I am not in fact arguing that it is. What I am instead arguing is that in the absence of clear and convincing evidence that international criminal tribunals actually do contribute to achieving reconciliation and thus to help peoples whose lives have been disrupted by wars to rebuild and recover, it is immoral to spend large amounts of money on them instead of on actions that actually do help the victims of war. That is now, sadly, the situation of the ICTY specifically, and probably of other major “successful” institutions supposedly bringing transitional justice by fostering reconciliation.

Appendix

The survey data used by Roland Kostić in his book Ambivalent Peace (2007) was done by a professional survey research company, PULS, in Sarajevo

31   Human Rights Watch, “Human Rights Trump Sovereignty in 1999,” press release, Dec. 9, 1999.

32 Human Rights Watch, “Civilian Deaths in the NATO Air Campaign,” Summary, pp. 7–8; http://www.hrw.org/reports/nato.

Acknowledgements: Revision of paper prepared for the conference on “The Milošević Trial: An Autopsy,” Indiana University School of Law, Bloomington, IN, Feb. 18–21 2010. I am grateful to two anonymous reviewers.

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and Zagreb; I might note that survey research in the former Yugoslavia has been of high quality since the 1970s, and PULS has an excellent reputa-tion in the region. In predominantly Bosniak areas, 900 respondents were sought, and 800 each in Croat- and Serb-dominated areas. In all three areas a two-way stratification was made by “region” and “size of city/ set-tlement,” with a randomized sampling procedure. Data were collected in regions focusing on Mostar, Tuzla, Zenica, Bihać and Banja Luka as well as Sarajevo. Cities and villages were “sampled using a random digit gen-erator with probablities proportionate to size.“ The results were striking: on almost all questions concerning political issues, reconciliation and the ICTY, there was very strong internal consistency within each of the major groups: Bosniaks, Croats and Serbs, and marked differences between them. Kostić also engaged in elite interviews, which he used to intepret the sur-vey data. All told, Kostić’s book is one of the most sophisticated scholarly studies of public opinon in Bosnia and Herzegovina since the war.

References

Baylis, E. (2008). Tribunal-Hopping with the Post-Conflict Justice Junkies, Oregon Review of International Law 32: 361.

Bloomfield, D., Barnes, T., and Huyse, L., eds., 2003. Reconciliation after Violent Conflict: A Handbook. Stockholm: International Institute for Democracy and Electoral Assistance.

Blumberg, A. (1967). The Practice of Law as Confidence Game: Organizational Cooptation of a Profession, Law & Society Review 1 (#2): 15–40.

Brown, J. (1921). The Trial of the Kaiser, in Edward Mandell House, What Really Happened at Paris. New York: Scribner.

Clark, J. (2009). The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina, Journal of International Criminal Justice 7: 463.

Ford, S. (2010). How Leadership in International Criminal Law is Shifting from the U.S. To Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts (September 8, 2010). Saint Louis University Law Journal, 2010. Available at SSRN: http://ssrn.com/abstract=1674063.

Gibbs, D. (2009). First Do No Harm: Humanitarian Intervention and the Destruction of Yugo-slavia. Nashville: Vanderbilt University Press.

Gilomee, H. (1997). Surrender without Defeat: Afrikaners and the South African “Miracle,” Daedalus 126 (2): 113.

Hagan, J. (2003). Justice in the Balkans. Chicago: University of Chicago Press.Hayden, R. (2005). Democracy without a Demos? The Bosnian Constitutional Experiment

and the Intentional Construction of Nonfunctioning States. East European Politics & Societies 19(#2): 226–259.

——. 2007. Moral Vision and Impaired Insight: the Imagining of Other Peoples’ Communi-ties in Bosnia. Current Anthropology 48: 105–131.

——. 2008. “Genocide Denial” Laws as Secular Heresy: A Critical Analysis with Reference to Bosnia. Slavic Review 67: 384–407.

Human Rights Center (2000). Justice, Accountability and Social Reconstruction: An Inter-view Study of Bosnian Judges and Prosecutors. Berkeley: International Human Rights Law Clinic, University of California at Berkeley.

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Ivković S., and Hagan, J. (2006). The Politics of Punishment and the Seige of Sarajevo: Toward a Conflict Theory of Perceived International (In)Justice. Law & Society Review 40: 369.

Jović, D. (2009). Croatia after Tudjman: the ICTY and issues of transitional justice, Chaillot Paper No. 116, War crimes, conditionality and EU integration in the Western Balkans, June 2009, European Union Institute for Security Studies (EUISS), https://dspace.stir .ac.uk/dspace/handle/1893/1993.

Keynes, John Maynard (1920). The Economic Consequences of the Peace. New York: Har-court, Brace and Howe.

Klarin, M., The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia. Journal of International Criminal Justice 7: 89–96.

Kostić, R. (2007). Ambivalent Peace: External Peacebuilding, Threatened Identity and Recon-ciliation in Bosnia and Herzegovina. Department of Peace and Conflcit Research Report no. 78. Uppsala: Uppsala University.

Mendeloff, D. (2009). Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice, Human Rights Quarterly 3: 592–623.

Peskin V., & Boduszynski, M. (2003). Croatia’s Moments of Truth: The Domestic Politics of State Cooperation with the International Criminal Tribunal for the former Yugoslavia. Berkeley: Berkeley Program in Soviet and Post-Soviet Studies, Institute of Slavic, East European, and Eurasian Studies, UC Berkeley. Permalink: http://escholarship.org/uc/item/8qm1q7mt.

Snyder, J. and Vinjamuri, L. (2003/04). Trials and Errors: Principles and Pragmatism in Strategies of International Justice. International Security 28, 5–44.

Subotić, J. (2009). Hijacked Justice: Dealing with the Past in the Balkans. Ithaca: Cornell Uni-versity Press.

Todorov, T. (2009). Memory as a Remedy for Evil, Journal of International Criminal Justice 7: 447.

Wiebes, C. (2003). Intelligence and the War in Bosnia, 1992–95. Munster: LIT-Verlag.Wippman, D. (2006). The Costs of International Justice, 100 American Journal of Compara-

tive Law 100: 861.

PART IV

UN-IMAGINING COMMUNITIES

CHAPTER THIRTEEN

“DEMOCRACY” WITHOUT A DEMOS? THE BOSNIAN CONSTITUTIONAL EXPERIMENT

Constitutional ethnography is a slightly odd metaphor, since “ethnography” was developed in anthropology to mean the close descriptive analysis of a people (ethnos, Greek “nation”) rather than an institution. Yet the link between modern constitutionalism and another Greek-derived term, democracy, reveals a meaning of “constitutional ethnography” that may be more than metaphorical. Modern democratic constitutions define themselves in terms of the rule of “we the people,” the demos or politi-cal community that is the bearer of sovereignty. In constitutional systems such as those of India and the United States, both of which use the “we the people” formula in their preambles, demos and ethnos are merged, so that there is at present no differentiation between “the people” as the sov-ereign political community (demos) and any single ethnic group (ethnos).1 This position is philosophically satisfying, as a state premised on benefit-ting only one ethnic group is usually now seen as violating the principle of equality and thus as inherently non-democratic.2

What happens, however, when there is no demos, no political commu-nity that accepts a state (a territory with a government) as its own, because the population divides itself into different ethnic groups no one of which comprises a majority of the population and the members of each see their worst danger as subordination to the others? In such a case, can a con-stitution (as a set of rules meant to constitute a government) be imposed

1   There was such a distinction in the United States until the post-civil war amend-ments, as Dred Scott (1856) had held that members of “the African race” were not among “the People” for whose benefit the Constitution was established and thus could not be citizens. In contemporary India, the appeal of Hindu nationalist parties is precisely that India should be a country of, by and for Hindus, not a civil society of equal citizens, a posi-tion contrary to the Nehruvian definition of India and that is yet contested (see Varshney 1993).

2 Cf., however, Sammy Smooha’s delineation of “ethnic democracies,” which “combine viable democratic institutions with institutionalized ethnic dominance” (Smooha 1990: 389; see also Smooha 1997). Smooha specifies that an ethnic democracy extends political rights to minorities and thus is to be distinguished from a “herrenvolk democracy” which denies such rights to minorities – presumably the United States at the time of Dred Scott would fall into the latter category.

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on the peoples who refuse to constitute themselves as “a people”? If such a government can be imposed, can it claim to be democratic – a mecha-nism by which a sovereign people orders its own affairs – in the absence of a demos?

Since 1995, Bosnia and Herzegovina (hereafter, “Bosnia”) has been the scene of an experiment in the imposition of what is supposed to be consti-tutional democracy in a territory inhabited by peoples who divide them-selves and each other into different nations3 (Bosniaks [until 1994 known as Muslims], Serbs and Croats) whose members mistrust each others’ collectivities deeply, with the majority of the latter two of these nations rejecting inclusion in a Bosnian state in the first place. This experiment provides what may be the limiting case of constitutional ethnography, an opportunity for close analysis of constitutionalism in a territory in which the existence of multiple ethni has precluded the creation of a single demos. As a limiting case, the Bosnian experience raises questions not as visible in more coherent settings. One such question is whether it is in fact possible to create a self-governing state when a very large percentage of its putative citizenry rejects inclusion within it. A second is whether the reluctance to admit that not all populations within even a well-bounded territory actually comprise a nation leads even well meaning international actors to promote constitutional structures that cannot in fact found a workable state.

These questions are real, not rhetorical, in Bosnia, and the implications of negative answers to them are actually quite profound. For example, the idea of the Social Contract is usually thought of as being metaphori-cal, yet if sufficient numbers of persons do not consent to comprise “a people,” democratic constitutionalism is impossible. In this regard, Bene-dict Anderson’s most famous phrase is perhaps misleading. Anderson, of course, defined nations as “imagined” communities because “in the minds of each [member] lives the image of their communion” and he uses this concept to rephrase Hugh Seton-Watson’s proposition (quoted in Ander-son 1991: 6, n. 9) that “a nation exists when a significant number of people in a community consider themselves to form a nation, or behave as if they formed one;” Anderson “translates” “consider themselves” as “imag-ine themselves.” Anderson’s wording is much more passive in structure than Seton-Watson’s, an image living in peoples’ minds as opposed to

3 Narod (pl. narodi) in Serbo-Bosno-Croatian; just as nation is a cognate of the Latin “to give birth” (natio), narod is a cognate of the Slavic verb “to give birth” (roditi).

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people considering themselves or acting in a particular way. A constitu-tion may reflect an image in Anderson’s usage, but can it create such an image where it does not otherwise enjoy support? Bosnia both raises this question and provides an answer to it that is rather discouraging for those who think that a constitutional structure can overcome the rejection by a large percentage of a population of inclusion in a common state with those whom they do not regard as members of the same nation.

The Bosnia experience of constitutionalism is especially troublesome because the potential dangers of conflict between Bosnia’s peoples were recognized during the transition from Communism, and constitutional mechanisms were put in place to try to prevent them. That these mecha-nisms failed is obvious; yet the international civil servants who now exer-cise suzerainty over Bosnia proposed new constitutional mechanisms in 2002 that look strikingly like the ones that failed there in 1990–92, and even like the ones that failed in federal Yugoslavia in 1989–91. This simi-larity is presumably unintentional, which makes it all the more revealing: there are, it would seem, problems of social division that defy constitu-tional solution even as there are favored themes that are meant to address them. Thus the Bosnian case is a cautionary tale about the limits of con-stitutionalism when there is no social consensus on the character or even the existence of the nation, and thus not on the establishment of a state.

Research Context: Participant Observation in Constitutional Debates in the Former Yugoslavia

The research reported here is the product of perhaps unusual socio-legal fieldwork: participant observation in constitutional debates in the former Yugoslavia and some of its successor republics. The beginning of the end of the Yugoslav federation was initiated in 1989 by a classic constitutional crisis, in which constituent units of the Federation began to reject the authority of the central government. The issues were familiar enough from the analyses in the first ten Federalist Papers of the weaknesses of confederations, and also from the Southern rejection of federal author-ity in the steps leading to the American Civil War. Since I had already put nearly a decade into socio-legal research in Yugoslavia and was fluent in Serbo-Croatian, I turned to analyses of the constitutional issues that suddenly threatened Yugoslavia (see Hayden 1990). Yet it became clear that the issues of state structure could not be separated from the cultural concepts of nation (narod) and state (država) that drove them, and the

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powerful ideological combination in which, to the Yugoslavs, the state (a territory with a government) had to belong to a single sovereign nation (an ethnic group, in American terms: Serbs, Croats, Slovenes, etc.). This was not a Yugoslav aberration, as the ideology is pure Romanticism, as embod-ied in Hegel’s philosophy of history. In any event, my analyses of Yugoslav constitutional proposals produced a scholarly book (Hayden 1999; Serbian edition 2003) and articles, but also newspaper and radio interviews in Serbia and Bosnia, seminars in government and policy institutions in the USA and in Serbia, and an appearance as an expert witness on constitu-tional issues in the first trial before the International Criminal Tribunal for the Former Yugoslavia. This close interaction with the issues informs this article; my scholarly works are cited as sources for more detailed analysis and for references to the original materials on the relevant points.

My original analyses were driven by the realization that adopting the classic central European nation-state configuration in a country as hetero-geneous as was the former Yugoslavia would produce a catastrophic war. However, as that war did indeed get going in 1991–92, it dawned on me that every political leader who was involved in setting it in motion became more popular thereby (all of them won re-election by greater margins than they had won in 1990), and most became very rich, at least by Balkan standards, as they drove the great masses of their own populations into poverty, and not infrequently into death, injury and exile. Clearly, normal, ordinary people were willing to kill, and some even to die, in order to cre-ate ethnocratic nation-states out of the heterogeneous territory of the for-mer Yugoslavia (see Hayden 1996c), and to vote for leaders who brought about these processes. In fact, despite the wars, or perhaps because of them, few former Yugoslavs express much real longing for forming a com-mon state once again. Indeed, a public opinion survey in Croatia on the tenth anniversary of that republic’s independence showed that 55.3% of those surveyed thought that the war was worth it, even though 51% of the respondents believed that they live less well than they did ten years earlier (the breakdown between this latter 51% and the 23% who thought that the war was not worth it is not specified).4

Yet the international political establishment, and most of the scholarly efforts of those who became interested in Yugoslavia only after its vio-lent collapse and because of it, seemed to hold the position that while

4 Results of survey conducted by the Zagreb newspaper Večernji list as reported by the internet service of Belgrade independent radio B92, January 14, 2002).

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Yugoslavia had been an “artificial” state of incompatible peoples, Bosnia was not, and thus Bosnia could, should, even must be reassembled as it was before the wars and ethnic cleansing destroyed the society that had existed under socialism. The Bosnian constitutional experiments ana-lyzed in this paper have certainly been aimed at undoing the effects of the war; but in so doing they run counter to the feelings of a large portion of the population of Bosnia: according to a World Bank study, only 19% of internally displaced Serbs, 29 % of internally displaced Croats and 74% of internally displaced Bosniaks wished to return to their pre-war homes in areas in which they would be members of local minorities (World Bank 2002: 25 n. 39). The forced movements of populations that occurred dur-ing the 1992–95 war and immediately after its conclusion seem likely to be permanent for many people.

The difference in opinions between the Bosniaks, Croats and Serbs on the question of returning to their former homes in places where the returnees would be in the ethnic minority is not the result of differing experiences during the war of 1992–95, but rather a manifestation of the political partitioning of the Bosnian population that occurred before the war (see Hayden 1999, Ch. 5). Relatively good public opinion data exist from before the war,5 which indicate clear divisions in opinions between the Muslims (as the Bosniaks of today were then called), Serbs and Croats of Bosnia on questions of interethnic relations and the political futures of Yugoslavia and Bosnia. Interestingly, Serbs and Croats in Bosnia in mid-1990 expressed both higher percentages of those willing to contract interethnic marriages and also higher percentages of those extremely unwilling to do so than did their ethnic brethren in Serbia and Croatia (Pantić 1991: 179). In 1990, when the future of Yugoslavia was in question, Macedonians, Bosnians (as opposed to Bosniaks or Muslims) and Monte-negrins were most opposed to the idea that each nation had the right to “self-determination” (meaning secession) while Slovenes and Croats gave most support to that idea (Goati 1991: 121). Yet Croats within Bosnia were less certain: while 28% of Croats in Croatia were in favor of republican supremacy over the federation (i.e., for secession), only 45% of Croats in

5 The best data were collected in May and June 1990 by a team of researchers from the major social science institutes in every republic of the Yugoslav federation, who drew a random sample of 4,230 adults, representative of each republic and province and of Yugo-slavia as a whole. The research was commissioned by the then-Federal Prime Minister, the only major political figure in the country who was committed to preserving Yugoslavia. By the time the research was published (Baćević et al. 1991), however, the wars had already begun.

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Bosnia supported this option (Goati 1991: 123), about the same as the total percentage of respondents in Bosnia who opposed “self-determination” (Goatia 1991: 121).

Greater detail is available from a late 1991 survey of university students in Bosnia. At that time, the war in Croatia was already in progress and it was clear that the Yugoslav federation would not survive. Croat respon-dents were most in favor of either independence for Bosnia (36.21%) or for a sovereign Bosnia in a Yugoslav “confederation” (36.29%), which meant much the same thing. A plurality of Muslims (48.55%) were in favor of the confederal option, but a similar plurality of Serbs wanted the continuation of a real federation (46.23%) that precluded secession. The division of Bosnia on ethnic lines was supported by 9.68% of Croats and 9.55% of Serbs, but only 1.81% of Muslims. However, the clearest division came on the question of whether Bosnia could survive as an independent state, outside of Yugoslavia. On that issue, 78.14% of Serbs and 71.32% of Croats said no, while 61.33% of Muslims said that it could (all data from Goati 1992: 113).

The Bosnian war of 1992–95 manifested the common belief of Serbs and Croats that there could be no Bosnia outside of Yugoslavia, as they strove to divide the territory of Bosnia on the ground once a diplomatic solution was precluded by Bosnia’s international recognition (see Shoup and Burg 1999). In constitutional terms, after the war began in 1992 the Bosnian Serbs and Croats rejected any concept of an integral state, which the Muslims wanted, as international mediators recognized (see Hayden 1999: 101–102 and references therein). At no point since then have Croat or Serb politicians in Bosnia who have had the support of any sizeable percentage of voters ever been willing to accept a central government of Bosnia that would have any real authority over them.

From the perspective of an ethnographer, the relevant data are the beliefs of the people being studied, even when s/he does not find those beliefs plausible. In the former Yugoslavia, and especially in Bosnia, Yugo-slav social scientists found in a country-wide survey of public opinion in 1990 that

national [i.e. ethnic] identification (and territorial and confessional) is in fact the new political signifier and primary basis for opinion differences in Yugoslav society. This new “status” of national identification is extremely important, and in interaction with the ideologizing of all conflicts as con-flicts between nations (which is also a consequence), all changes in society are practically blocked. Even though it is apparent that extremely varied and differentiated interests of individuals and social groups generally cannot

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(or in the main cannot) be reduced to a unified national interest, neither can such interests be identified with global republican (ethnocratic) politics, the data from our research show that that which is impossible on the objective level is possible on the level of consciousness (Baćević 1991: 290, emphasis in original).

Thus this article accepts that there is excellent evidence that peoples com-prising a very large percentage of the population of Bosnia do not accept inclusion in a common state with members of other national groups, and asks the question of whether it is possible to construct a constitutional democracy in such a situation. That this situation was not actually new in Bosnia in 1991, and that comparable situations of nonconsensual union have existed elsewhere in the world (e.g. Cyprus in 1964 and 1974) may give the analysis wider resonance. Thus the article considers first earlier attempts to bridge (or paper over) Bosnia’s ethno-national divisions as background for the analysis of the international community’s attempts after the Bosnian war to create a democracy in a setting in which perhaps half of the population rejects subjection to the proposed government.

Bosnia’s War: The Failure of a State Without a Nation

The former Yugoslavia became “the former Yugoslavia” when the peo-ples of its various constituent republics voted for separate nation-states, grounded on the sovereignty not of the polity of equal citizens but rather of the nation, ethnically defined (see Hayden 1999).6 These ethnicized definitions of sovereignty were constitutionalized in each republic, so that

6 Accounts of the demise of the former Yugoslavia are not infrequently criticized on the grounds that they fail to allocate primary blame to one of the various collective actors: the Serbs, Croats, Slovenes, Germany, the USA, the UN, the Vatican, the Freemasons, to name the most prominent putative culprits. A prominent scholar on the region has even asserted in a professional journal that “universal morality” requires that scholars identify culpability, and accuses those who do not do so of “moral relativism” and of being sym-pathetic to Slobodan Milošević and other Serb nationalists (Ramet 2000: 476–478); not surprisingly, that author places herself with the universal moralists. Without minimizing the justifiable fear of non-Serbs in the former Yugoslavia to come under the control of Serbia under the Milošević regime, the fact remains that rather than unite in order to defeat Milošević, the leaderships of the other republics pursued classic central European ethnonationalism in order to create independent states that would be ethnocracies (see, e.g., Mirić 1996, Dragević-Soso 2002). This article looks at the striking similarities in the logics of all of the state constructions in the former Yugoslavia, rather than to assume that the republic leadership(s) that first employed these forms are thereby guilty for the wars of the Yugoslav secessions.

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each was constituted formally (constitutionally) as the national state of the majority nation, ethnically defined.7 In all of the republics except Bos-nia, the titular nation (e.g. Slovenes in Slovenia, Croats in Croatia, Serbs in Serbia) was in fact a large majority, so that an ethnic state could be seen as the will of the majority of the population, which did in fact vote that way. Minorities could then be subjected to, at best, discriminatory treat-ment aimed at inducing either assimilation or emigration (Slovenia; see Radovanović 2002), with armed resistance leading to military conquest and mass expulsion (Croatia) or military rule (Kosovo 1989–99), the same recipes that had been used in 1945 to finally resolve the minority problems that had been created by Wilsonian self-determination after World War I (see Arendt 1966: 227–43 and 267–302; Hayden 1996b).

Bosnia was the exception because there was no single majority nation. A reliable census taken three months before the Slovenian and Croatian proclamations of independence brought on the wars of Yugoslavia’s disin-tegration showed Bosnia’s population to be 44% Muslim, 33% Serb, 17% Croat, and the remainder “Yugoslavs and others.” Had these peoples cho-sen to define themselves as Bosnians, there might have been a chance for a Bosnian state for the Bosnian people. Instead, the 1990 post-communist free and fair elections closely resembled an ethnic census, with Muslims voting for a Muslim nationalist party, Serbs for a Serb nationalist party, and Croats for a Croat nationalist party; even though all had the clear option to vote for a party that stood for a civil society of equal citizens, fewer than 10% did so (see Burg and Shoup 1999: 46–56). This political partition on ethno-national lines was not a new, post-communist phe-nomenon. To the contrary, every relatively free and fair election in Bosnia in the 20th century, from 1910 until 1999 produced the same result (see Arnautović 1996). And from the late 19th century, mass violence between these groups resulted every time that the larger polity encompassing Bos-nia broke down: 1875–78 (withdrawal of the Ottoman Empire [Lampe 1996: 65–66]), 1914–18 (collapse of Austro-Hungarian empire [Lampe 1996: 106–107]), 1941–45 (collapse of first Yugoslavia [M. Djilas 1980, Bogosavljević 2000]) and 1990–92 (collapse of second Yugoslavia).

This is not to adopt the “ancient hatreds” position, the assertion that these peoples have always hated each other. Were that true, they would

7 The relevant constitutional provisions are found in Hayden 1996: 26. Similar forms of constitutional nationalism were enacted in other post-socialist states in Europe; see Barrington 1995.

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not have been living so intermingled that “ethnic cleansing” was necessary to forcibly homogenize territories in 1941 or 1992. Yet coexistence did not mean that the peoples of Bosnia considered themselves to be one nation, a collective body with common interests. Instead, these peoples were con-stantly in competition with each other, competition that was controlled by various larger polities that contained Bosnia but that became violent whenever the larger political structure collapsed (see Hayden 2002). The violence was especially pronounced during World War II, which was a brutal combination of war against Axis occupation, civil war between Yugoslav peoples and Communist revolution (see M. Djilas 1980). The worst violence was in the “Independent State of Croatia,” a murder-ously nationalist Croatian state that had as state policy the elimination of Serbs in its territory through murder, expulsion and forced conversion (A. Djilas 1991: 125–127), the process now called ethnic cleansing.8 Bosnia was claimed by this Croatian state, and Serbs formed 72% of the victims there (Bogosavljević 2000: 155). Muslims formed 16% of the World War II Bosnia victims, mainly killed by Serbs. Memories of this period, officially repressed under communism, came back as the repression lifted, espe-cially as there were concentrated propaganda efforts by the Serbian and Croatian governments to revive them (Hayden 1994). These memories, as real and recent to the peoples of Bosnia as the Holocaust is to Jews, later drove much of the violence in Bosnia (see Sudetic 1998).

These same memories were presumably also the reason that the popu-lation of Bosnia was overwhelmingly opposed, in 1990, to permitting the organization of political parties on an ethno-national basis, and the Bos-nian parliament, in passing the electoral law under which the first free elections after communism would be held, actually prohibited such par-ties (Goati 1992: 53). Yet the Constitutional Court of Bosnia and Herzegov-ina annulled that ban as anti-democratic, thus clearing the way for openly nationalist parties, which were in any event already forming (Arnautović 1996: 11–12; Burg and Shoup 1999: 46).

Actually, the electoral law and revisions of the Bosnian constitution, both passed in anticipation of the 1990 elections, reflected the overwhelm-ing importance of ethno-national identity to the population of Bosnia and also the overwhelming fear that each group had of being dominated by the others. The election law provided that candidates had to be identified

8 Jews and Gypsies were to be killed, and most were: 78% of all Jews in Yugoslavia and 31% of all Gypsies (Bogosavljević 2000: 151).

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by their ethnicity and that the composition of the parliament had to reflect the ethnic composition of the population, with a tolerance for variation of 15%, and that state organs, including the state Presidency, had to have proportional representation of the ethno-national groups liv-ing in the republic (see Hayden 1999: 90–91; Arnautovic 1996: 12; Burg & Shoup 1999: 49–56).9

Amendment 70 (clause 10) of the Bosnian constitution,10 also passed in anticipation of the 1990 elections, offered further protection of the equality of the several peoples of the republic by providing for the establishment within the parliament of a “Council for Questions of the Establishment of Equality of the Nations and Nationalities of Bosnia and Herzegovina.” This council, to be composed of equal numbers of Muslims, Serbs, Croats and appropriate numbers of members of other groups, was to decide on ques-tions “by agreement of the members from the ranks of all of the nations and nationalities.” The Council was required to consider any question referred to it by at least twenty members of parliament, and had to approve the question by consensus before parliament as a whole could consider it. Even then, parliament could only pass a matter reported favorably by consensus of the Council through a special procedure that required a two-thirds majority of the total number of members of parliament (see Hayden 1999: 91).

The victories of the nationalist parties soon produced political dead-lock and constitutional breakdown. As the CIA’s quasi-official history of the conflict11 put it,

the three parties agreed to accept a consensus system whereby all must agree to a legislative change before it could pass; any one of the three eth-nic groups could block a proposed item of legislation. . . . If or when this sys-tem failed, not only the republic’s government but the republic itself would break down. . . . The three main political parties were at this point explicitly looking out for the interests of their own ethnic groups rather than for the interests of Bosnia – Herzegovina as a whole. Moreover, each group believed

   9 The relevant electoral laws are reprinted as appendixes in Arnautović 1996).10 Službeni List SRBiH broj 21/90 (31 July 1990), reprinted in Arnautović 1996: 180.11 This CIA publication was written by the two analysts who were assigned to follow

the Yugoslav conflicts at the time, and thus were very well informed. Their history actually contradicts official U.S. government policy in regard to Bosnia both in 1990 and since then, which continues to regard Bosnia’s war as the result of aggression rather than of failure of the state. My own conversations in Washington during the course of the Bosnian war lead me to believe that the CIA and other intelligence agencies did indeed provide accurate information to the first Bush and Clinton administrations, but that their findings were frequently ignored on the grounds that they were “contrary to policy.”

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its interests were threatened by – and directly at odds with – the other eth-nic groups (Central Intelligence Agency 2002: 122–123).

The breakdown of the constitutional system took months, and was the result of conscious choices of the political parties. The crucial issue was whether Bosnia would be proclaimed an independent state. The Serbs used constitutional mechanisms to prevent this event; the Muslims, sup-ported by the Croats, violated the constitution to achieve it. The crucial parliamentary debate took place in October 1991, after the secessions of Slovenia and Croatia from the Yugoslav federation and the start of war in Croatia. During an extended parliamentary session, a Muslim-supported motion to proclaim sovereignty did not obtain Serb agreement. The Serbs demanded that the question be put to the Council for Questions of the Establishment of National Equality mandated by Amendment 70, but since that Council had not yet been formed the Muslims rejected that demand. After continuous debate of nearly 20 hours, the President of the Parliament, a Serb, adjourned the parliament for the night, to resume the next morning, and left the building along with all Serb members. How-ever, after one hour, a Muslim proclaimed the Parliament to be in session and obtained unanimous consent to the Muslim-sponsored declaration of sovereignty (Borba 16 Oct. 1991: 3; cf. Burg and Shoup 1999: 76–79, Hayden 1999: 93–94). Similar parliamentary breakdowns let the Muslims and Croats schedule a referendum on independence despite the adjournment of the parliamentary session by its President and the demands by the Serbs that it be referred to the Council mandated by Amendment 70 (see Oslobod-jenje 26 January 1992: 1). Not surprisingly, the Serbs regarded the actions of the Bosnian parliament that were taken without the participation by them mandated by the Constitution as being invalid, and thus never rec-ognized the state that the international community decided to impose upon them. Denied the right to negotiate the partitioning of Bosnia, most of its Serbs and many of its Croats turned to the only other mechanism open to them to avoid inclusion in the state that they rejected: war.

Political deadlock in this case meant that the Bosnian state failed – the organized political authority lost the allegiance of at least half of the population, and also lost control over the territories that the people who rejected it controlled. Of course it is often true in any civil war that the government loses the allegiance of some citizens and control over some territories, but the difference in Bosnia was the internationally recognized government never had either the allegiance of half its putative citizens or control over even half of its supposed territory to begin with. Indeed, Bosnian independence was recognized by the international community

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not because “the people of Bosnia” wanted it, but rather precisely because so many of them did not. Recognizing that partitioning Bosnia would almost certainly cause massive bloodshed, the United States, in particular, pushed recognition of Bosnia through the United Nations in an attempt to prevent its division (Binder 1993). Thus Bosnia manifested what might be termed negative sovereignty, external insistence that it be one country when half of its own population was determined to divide it. To modify the biblical formula invoked by Abraham Lincoln, recognition was an attempt to proclaim a house divided to be a condominium; but too many of its residents preferred to destroy the structure rather than share it.

Note that what broke down was the idea of continuing co-existence in a common state: “a community which consists of a territory and a popula-tion subject to an organized political authority,” to quote the most influ-ential definition used in the Balkans at that moment, in the first decision of the Badinter Committee, the arbitration commission that had been appointed by the European Union to advise on legal questions involving the Yugoslav crisis. In that decision (31 I.L.M. 1494 [1992]; also Trifunovska 1994: 415), Badinter had said that the existence of the state is a question of fact, and that it was necessary to take into account the “form of political organization and the constitutional provisions . . . in order to determine the Government’s sway over the population and the territory.” Noting that the Yugoslav federal government, by November 1991, was “powerless” to halt armed conflict, and that federal governmental organs no longer had participation from components of the Federation, Badinter declared Yugoslavia to be “in the process of dissolution.” Application of this rea-soning to Bosnia in April of 1992 would have to produce the same con-clusion: Bosnia was in the process of dissolution, because its population was divided into hostile communities which could not agree on terms for organizing a political authority.

The war that followed was aimed at separating the populations into ter-ritories that were largely ethnically homogenized, the process now known as “ethnic cleansing” (see Hayden 1996a and 1996b; also Ron 2003). This process was brutal, frequently even murderous, as the populations were so intermingled in so many parts of Bosnia that clear lines of demarcation could not be drawn without engaging in what had been called “exchanges of populations” earlier in the twentieth century (see, e.g., Stavrianos 2000: 590–591, Djordjević 1989). Yet that it should not have happened, as a nor-mative position, does not solve the very practical problem of preventing it when there is in fact no consent to common statehood by the self- differentiating collectivities into which the population has partitioned

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itself. Attempts to resolve this problem, in Bosnia but also elsewhere, have been aimed at offering protections to the groups that feel threatened, but the problem is that these protections usually render the supposed state unworkable, the problem to which I now turn.

Political Paradox as Constitutional Dilemma I

It might be fairly said that the constitutional mechanisms broke down in Bosnia in 1991–92 because one side used them in such a way as to produce deadlock. The Serbs were not prepared to concede to Bosnian indepen-dence: “Most Bosnian Serbs genuinely and rightfully feared any political change that would leave them outvoted by a Muslim – Croat coalition and subjected to a tyranny of the majority” (CIA 2002: 123). The Serbs thus used the constitutional mechanisms designed to prevent precisely such subjugation, and the Muslims could obtain their independent state only by violating the constitution. But here is the paradox caused by the lack of a social contract. Inclusion of the Serbs (and many Croats) in a Bosnian state could be done only against their will, so that for them, the basic principle of democracy as being based on the consent of the governed was violated; and promises of protection of their rights as a minority were viti-ated because the very political mechanisms that guaranteed their equality were overridden.

This paradox of nonconsensual common statehood, in turn, produced a constitutional dilemma: the very mechanisms that would ensure equality of the national groups by preventing majoritarian voting against one of them by the others also ensure that the representatives of any group could use legitimate constitutional structures to prevent taking any decision at all, thereby immobilizing the constitutional system. This dilemma is real, not rhetorical, whenever the internal divisions of the population lead the members of any self-identified group to reject their identification as part of the same nation as the others.

This constitutional dilemma is glossed over by proponents of con-sensus-based polities, such as Arend Lijphart’s concept (1984) of “con-sociation,” which would protect minorities by requiring their consent to certain kinds of decisions (an idea, of course, that goes back at least as far as John C. Calhoun). The premise is that in such a situation com-promise will result because elite political actors will ultimately see the need to act on important issues. The problem is that in a society in which there is no agreement on a common identity (an ethnos) it is hard to find

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the common interests that are the premise of a single sovereign people (a demos), and thus that elites who must respond to the several demands of their different peoples can see as common ground. Federalism might seem a solution, but successful federations have been premised on the unity of the population as one nation (ethnos), thus as deserving to be a single sovereign (demos). Thus John Jay pretended in Federalist Paper no. 2 that the population of the United Sates in 1787 formed “one united people – a people descended from the same ancestors, speaking the same language, professing the same religion.” Similarly, the founding ideology of the Republic of India denied the importance of the divisions of religion, caste, language and color to claim that all of these divers peoples formed one “national group” since they were more similar to each other than to peoples outside of India (Nehru 1945: 50–51). In each case, government could be seen as “by the people” (demos) because they all formed one nation (ethnos)12 and thus both deserved and required one government.

The consensus ideal may be popular because it seems to provide a way for overcoming the dilemma: since everyone by definition ultimately agrees, the system does not break down. Yet this is hopeful view ignores the reality of the paradox caused by the lack of a social contract. If there is no real consent to inclusion in the state in the first place, it is extremely unlikely that there will be much consensus on issues of governance within it.

From House Divided to Condominium with Absentee Landlord

Having failed to prevent the breakdown of Bosnia or the ethnic cleans-ing of its components, the NATO countries decided in 1995 to impose a

12 In both cases, civil war was initiated on the premise of the need to privilege one part of the population against others. In the United States, Lincoln has been said to have accomplished a “refounding” of the nation, overcoming the presumption in The Federalist and in Dred Scott that the state was a creation by, of and for one part of the population in preference to others by stressing the Declaration of Independence’s wording of “all men are created equal” rather than the constitution itself (see Wills 1992). The southern posi-tion, of course, was that the state needed to enforce the superiority of white people. In India, Nehru’s rhetoric of ethnic and political unity was rejected by Jinnah’s demand for a separate state for the Muslim nation, the “two-nation theory” that itself reinforced the linkage between ethnos and demos by denying the all-India character of the ethnos and thus positing the need for a state to manifest the will of the separate Muslim demos. What is crucial, however, is that the basic unity of “the people” as demos was ultimately the majority position in the United States and in independent India.

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settlement. Following a successful U.S.-supported military campaign by the Bosnian Muslims and Croatia against the Bosnian Serbs that reduced Serb holdings to a predetermined 50% of Bosnian territory (Burg and Shoup 1999: 348–360), a peace conference was called in Dayton, Ohio in November 1995. A draft of a new constitution for Bosnia was provided by the Americans and subjected to some negotiations (see Bildt 1998: 136–139); it became Annex 4 of the Dayton Agreements. While this Con-stitution says in its Preamble that “Bosniaks, Croats, and Serbs . . . hereby determine that the Constitution of Bosnia and Herzegovina is as follows,” it was not written by any of these peoples, nor was it ever subjected to ratification by any of them by referendum or by any elected representa-tives. According to one of the leading European diplomats involved in the negotiations, “No one thought it wise to submit the constitution to any sort of parliamentary or other similar proceeding. It was to be a constitu-tion by international decree” (Bildt 1998: 139). The Constitution became effective when it was signed by the President of Serbia, the President of Croatia and the leader of the Bosnian Muslims; thus by two leaders who were not even citizens of the putative Bosnian state.

The Dayton Constitution for Bosnia is not the only constitution imposed on a people by international fiat, of course. After World War II the Basic Law of West Germany and the Constitution of Japan were imposed upon these states by the victors, who had largely drafted them. Yet in those cases, the identity of the ethnic nations in question, to whom the state belonged in each instance, was not in question – both Japan and Germany maintained jus sanguinis citizenship laws, and it was generally accepted that the German and Japanese states would manifest the sovereignty of these ethnic nations. In the case of Bosnia, the attempt to impose a con-stitution was part of an attempt to impose a state on nations that rejected inclusion within it, a very different matter.

While the Dayton constitution was premised on the continuation of Bosnia as a single state, its statehood was purely nominal. Bosnia as con-stituted at Dayton is composed of two “entities,” one defined as that of Serbs (the Republika Srpska), the other that of Muslims and Croats (the Federation of Bosnia and Herzegovina). Each of these has its own military forces (with the “Federation” under its own constitution actually having separate Croat and Muslim military forces) and with a central government of such restricted power as to be without authority at all (see Hayden 1999: 123–139). The enumerated powers of the Bosnian government (as opposed to all other powers, reserved to the Entities) are:

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Foreign Policy;Foreign Trade Policy;Customs Policy;Monetary Policy;Finances for central institutions;Immigration, refugee and asylum policy and regulation;International and inter-entity criminal law enforcement;Establishment and operation of common and international communica-tions facilities;Regulation of inter-entity transportation;Air traffic control.

Thus the Bosnian central government was established essentially as a customs union with a foreign ministry. The subtle nature of statehood under a system in which the supposed government has virtually no gov-ernmental powers may be compared to the zen koan of the sound of one hand clapping, a wonderful problem for meditation but rather difficult to implement.

Even the few powers the Bosnian government was given, however, were made hard to exercise. A collective Presidency (one Serb, one Croat, one Muslim) was charged with making decisions by consensus, and where that was not possible, an outvoted member could institute an annulment pro-cedure (see Hayden 1999: 129). Parliamentary decision-making could be blocked by single national groups. This was intentional. As Carl Bildt put it (1998: 138), the international drafters of the Constitution recognized that

there was an evident need for a means to prevent decisions taken by a sim-ple majority which conflicted with what one of the ethnic groups perceived to be its vital interests. The country would soon fall apart if there were no such safety device. On the other hand, there was a clear risk that such a device might be used to block crucial decisions. There would then be a risk that no decision would be taken at all, and the country would fall apart for that reason.

The solution was seen to be “a mechanism for one constituent people to block a decision deemed contrary to its vital interest. But there should also be an opportunity for a constitutional court – with substantial inter-national representation – to determine whether the vital interests of a population group were really involved” (Bildt 1998: 138). This last provision was actually self-contradictory, as it meant that unelected international judicial representatives would be empowered to overrule the determi-nation of elected officials that the interests of the people they represent were threatened. It is extremely difficult to envision a situation in which such an overruling would be seen as legitimate by those who were already claiming that their rights were being violated.

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The constitutional structures involved were as follows: Art. I.1 of the Constitution of the Federation defined it as having been established by Bosniaks and Croats in the exercise of their sovereign rights, while the Preamble and Art. 1 of the Constitution of the RS defined it as a “state of the Serbian people” (see Hayden 1999). The Dayton constitution rec-ognized this basic division in a number of ways. Thus the House of the Peoples must consist of five Croats and five Bosniaks from the Federa-tion, and five Serbs from the RS (art. IV.1). The collective state Presidency must have one Croat and one Bosniak member, both elected from the Federation, and one Serb member elected from the RS (art. V). Each of these Presidency members may challenge a decision by the Presidency as “destructive of a vital interest of the Entity from the territory of which he was elected,” in which case the question is put to the RS parliament (if the challenge was made by the Serbian member of the Presidency), to the Croat members of the Federation parliament if the challenge is made by the Croat member of the Presidency, and to the Bosniak members of the Federation parliament if the challenge is made by the Bosniak mem-ber of the Presidency (art. V.2.d); if the challenge is confirmed by a two-thirds vote of the legislators to whom it is referred, the challenged action is invalid. The Constitutional Court has two Croats and two Bosniaks from the Federation and two Serbs form the RS, plus three other judges, selected by the President of the European Court of Human Rights, who may not be citizens of Bosnia “or of any neighboring state” (art. VI.1). It is recognized that each Entity has its own armed forces, which are prohib-ited from entering each other’s territory (art. V.5); since the Constitution of the Federation recognizes the existence of separate Croat and Bosniak armed forces, Dayton accepted these separate armies.

The convoluted structure of protections for the rights of the several national groups in Bosnia embodies the constitutional dilemma caused by nonconsensual inclusion in the state, as does the ultimate reference to non-citizens as key decision-makers. Perhaps the zen-like nature of Bosnia’s government without governmental powers was meant to pre-clude any group from feeling threatened enough to want protection, but if that was the intention of the non-Bosnian drafters of Bosnia’s constitu-tion, they failed to realize that any seemingly governmental act is threat-ening to those who reject the authority of that government.

The complete inability of the central Bosnian government to function quickly became apparent after the constitution went into effect in late 1995. The major powers had appointed themselves as a “Peace Imple-mentation Council” (PIC) to oversee the implementation of the Dayton agreement and the actions of the international High Representative (HR)

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appointed by the PIC; the first HR was Carl Bildt. The PIC insisted that elections be held as soon as possible; the elections were held in Septem-ber 1996, and were won, overwhelmingly, by the three nationalist parties that had won in 1990 and then brought Bosnia to war (OSCE Commission 1996).13 Yet these parties could not agree any better in 1996/97 than they could in 1991/92. By May 1997 the PIC was impelled to state that “all the authorities of Bosnia and Herzegovina are failing to live up fully to their obligations under the Peace Agreement, and that this is unacceptable;” and to “urge the authorities of Bosnia and Herzegovina and their repre-sentatives to stop blaming each other, or the international community, for the problems they encounter, and to work together constructively and in a spirit of reconciliation for their common good.”14 Not surprisingly, perhaps, to anyone not bound to the compulsory optimism that is the party line of the PIC, this urging of good fellowship had little effect. By the PIC’s next meeting, in December 1997, that body found it necessary to grant the HR paramountcy over Bosnian elected officials, “welcoming” the HR’s “intention to use his final authority . . . regarding interpretation of the [Dayton] Agreement . . . in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary,” including “interim measures to take effect when parties are unable to reach agreement” and “other measures,” which might “include actions against persons holding public office.”15

The self-contradictory nature of the HR’s assertion of power is well illus-trated by his unilateral creation of state symbols for Bosnia. One of the few clear constitutional grants of authority to the Bosnian central govern-ment is the power to adopt state symbols, such as a flag, coat of arms and hymns, “as decided by the Parliament and accepted by the Presidency” (art. I.6). Unsurprisingly, the Serbs, Croats and Muslims were not able to agree on common symbols for a state which the leaderships of the first

13 Virtually all experts on the region had predicted that early elections would be won overwhelmingly by the nationalist parties, thereby giving them new legitimacy – for exam-ple, this was the unanimous opinion of experts (including this author) who were called together by the State Department’s Bureau of Intelligence and Research for a meeting in Washington on 1 November 1995, in the run-up to Dayton. The experts were correct; some of them were told later that Richard Holbrooke simply rejected out of hand any suggestion that elections be postponed.

14 PIC Sintra Declaration, May 30 1997; http://www.ohr.int. All PIC documents cited in this paper may be reached through this site, which is that of the Office of the High Representative (OHR).

15 PIC Bonn Conference, 10 December 1997, Conclusions. Ironically, the theme of the Bonn conference was “Bosnia and Herzegovina 1998: Self-sustaining Structures.”

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two groups had never had any real interest in joining in the first place. The solution of the HR was to create a special flag commission, which designed a “neutral flag:” a gold triangle on a blue background with a row of white stars, in which “the triangle represents the three constituent peoples of Bosnia and Herzegovina, the gold colour represents the sun, as a symbol of hope; the blue and the stars stand for Europe.”16 Thus the HR intentionally chose a design that had no emotional connection with anyone in Bosnia and Herzegovina. When the flag was unveiled at a press conference, even the HR’s own press spokesmen laughed when a reporter pointed out that the flag “looks like a cornflakes box.” A similar design was chosen by the High Representative for the “official seal by which B&H will be represented internationally, on the country’s passport, for use on official documents . . . and by embassies and consulates:” a design that “fol-lows the design and themes of the flag . . . blue, with a triangle of yellow colour in the top right side corner, and a row of five white stars running parallel to the left side of the triangle.”17

In fact, the primary consideration driving selection of the flag was the Winter Olympics in Nagano, Japan: the deadline for selecting the flag was set with the Games in mind.18 Thus the symbols of Bosnian statehood were chosen by the international community rather than by Bosnians themselves, from designs that have meaning to the international commu-nity rather than to Bosnians themselves, according to a schedule deter-mined by the publicity calendar of the international community rather than the desires of Bosnians themselves. But this rejection of Bosnian opinion was necessary, because the sentiments of the Bosnian peoples have not changed since 1990: in 2001, Bosnian Serbs and Croats refused overwhelmingly to celebrate the Bosnian Statehood Day that the Mus-lims and the international community recognized,19 and in the elections of September 2002, the winners were the same nationalist parties that had won in 1990 and 1997.

In 1999 the HR began to remove elected officials from office, on the grounds that they were obstructing the peace implementation process and “blocking the will of the people.”20 This last charge was especially

16   OHR Bulletin 65, 06 February 1998.17   OHR Press Release, “Coat of Arms of BiH,” Sarajevo, 20 May 1998.18   Id.19   Http://www.ohr.int/ohr-dept/press/bh-media-rep/round-ups/default/asp/content_

id=6432 (26 Nov. 2001).20 See, e.g., OHR Press Release, “Removal from Office of Nikola Poplasen,” Sarajevo,

March 5 1999 (www.ohr.int/press/p990305b.htm).

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striking as the removed officials had been elected by the people and the HR was appointed by the PIC. By early 2000, the deadlock on virtually all political issues led the HR to take actions clearly not congruent with any concept of constitutional democracy. Surely one of the most memorable statements in world parliamentary history came when the High Represen-tative, in response to the failure of the elected parliament to pass a law he wanted, thereby enacted it “on an interim basis, until the Parliamen-tary Assembly adopts this law in due form, without amendments and no conditions attached.”21 A similar high point in parliamentarism is found in the High Representative’s press release of 13 January 2000: “As a result of the B&H House of Representatives’ continued failure to adopt the Law on State Border Service, the High Representative, Wolfgang Petrisch, has decided to impose the required legislation.”22 In March 2001 the High Rep-resentative removed the elected Croatian member of the Bosnian state presidency even though, or perhaps because, the party the man repre-sented continued to get the largest number of Croat votes in Bosnia.23

A true constitutional conundrum was reached by the HR in July, 2000. In one of its very few acts of normal parliamentary decision making, the Bosnian House of Representatives actually passed a Law on Presidential Succession. The HR objected to the law, however, because the other house of the Bosnian parliament, the members of which are elected by the entity parliaments rather than directly, would control the succession process. To the HR, this law “contradicts the entire concept of democratic parliamen-tary practice as it takes the decision out of the hands of those who have been directly elected by the public at large.” Accordingly, the HR said that “the law which was adopted by the House of Representatives will be sub-jected to constitutional interpretation by the High Representative.”24 How this “interpretation” by the non-citizen, unelected HR would not contra-dict the entire concept of democratic parliamentary practice remained unclarified. Certainly the power of constitutional interpretation was never given to the HR by any constitutional document until the moment that he asserted that he had it.

From even before its proclamation as an independent state, then, Bos-nia has been a house divided, a nominal state without an actual nation,

21   Proclamation of the Law on Citizenship of Bosnia and Herzegovina, Office of the High Representative, Sarajevo, December 1997.

22 http://www.ohr.int/press/p20000113a.htm.23 http://www.ohr.int/roundup/bih010301.htm#2.24 Joint OHR/ OSCE Press Release, 28 July 2000. Www.ohr.int/press/p20000728a.htm.

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a population whose self-differentiating ethnae preclude the formation of a demos. Since two of the three corporate residents of this condominium would prefer to tear it down in order to build their own houses (or rather, to annex themselves to the houses of their ethnic brethren), the absentee landlordship of the PIC is necessary to preserve the property.

The Unconstitutional Constitution

Recognizing that the Dayton constitution did in fact partition Bosnia, the HR engaged the Constitutional Court of Bosnia and Herzegovina in a remarkable attempt to rewrite the constitution by fiat. Of course, all con-stitutional courts may effectively rewrite the constitutions they interpret by giving new meaning to old words. The HR’s innovation was to get the Constitutional Court of Bosnia and Herzegovina, over the strong objec-tions of its Serb and Croat members, to declare the basic structure of the Dayton constitution to be unconstitutional.25

As discussed above, the Dayton Constitution had in essence ratified the partition of Bosnia that the dominant Serb and Croat parties had offered as their election platforms in 1990 (and 1996), for which people had voted, and that was the whole point of the war. The distribution of peoples after the war was over and the Dayton Agreement came into effect reflected this partition. According to figures cited by the Constitutional Court of B&H, in the RS, the percentage of Serbs rose from 54.3% in 1991 to 96.79% in 1997, while in the Federation, the percentage of Serbs dropped from 17.62% in 1991 to 2.32% in 1997. Other figures show that within the Federa-tion, the separation of Croats from Bosniaks was also nearly total.

In an effort to remove legitimacy from this political partition, Bosniak politicians brought a suit in the Constitutional Court of B&H, alleging that the entity constitutions violated the provisions for equality in the Consti-tution of B&H by defining the entities in ethno-national terms, the RS as a Serb entity, Federation as a Muslim and Croat one. The argument was that the last paragraph of the Preamble of the Dayton Constitution, which referred to “Bosniaks, Croats and Serbs, as constituent peoples . . . and citi-zens of Bosnia and Herzegovina,” gave all of these peoples equal rights throughout all of Bosnia. By this reasoning, the provisions in the RS con-stitution that defined it as a state of the Serbian people, and those in the

25 All of the constitutions involved, and the decisions of the Constitutional Court, are available at http://www.ohr.int/ohr-dept/legal/const/.

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federation constitution that referred to the sovereign rights only of Croats and Bosniaks, were unconstitutional as contrary to the Preamble of the Dayton Constitution.

Since so much of the basic structure of the Dayton Constitution for Bosnia also reflected these definitions, the case essentially alleged that the basic structure of the Bosnian constitution was unconstitutional – a first, one suspects, in world constitutional theory (although the Supreme Court of India did several times declare constitutional amendments to be invalid as contrary to the basic structure of the constitution; new amendments always reversed these decisions, however [see Austin 2000: 258–277]). In 2001, the three foreign judges of the Constitutional Court of B&H joined the two Bosniak ones in agreeing to this novel position, outvoting the two Serb and two Croat judges, all of whom dissented. This decision by the international judges was a manifestation of the mechanism that Carl Bildt had said was created to prevent stalemates in decision-making by the representatives of one national group (see above), but was now used to impose the desires of one national group over the expressed wishes of the other two.

The HR then demanded that the entity constitutions be rewritten to bring them into line with this decision. The mechanism for doing so, how-ever, actually seems to return Bosnia to a constitutional position much like the one that existed in 1990, and that did not work.

Political Paradox as Constitutional Dilemma II

The HR’s provisions for overcoming the political divisions of Bosnia, like those of the 1990 Bosnian constitution, require proportional representa-tion of the peoples of Bosnia in governmental bodies and also require consensus in decision-making.26 This decision was mandated by the HR and was not accepted at all by the most important Croat party, and only in part by the most important Serb one. Thus it was not really an “Agreement,” and there was a certain unreality in the PIC’s statement that “welcomes the readiness of Bosnia and Herzegovina’s political leaders to finally engage each other in a spirit of good [sic] with the aim of taking the

26 “Agreement on the Implementation of the Constituent Peoples’ Decision of the Con-stitutional Court of Bosnia and Herzegovina,” March 27, 2002. www.ohr.int/print/?content_id=7243.

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country forward towards a European future built on the rule of law.”27 Not only did the leaders not agree, but the HR’s “Agreement” seems designed to produce stalemate rather than laws.

The Agreement has four main provisions. Art. I is the protection of “vital interests” of the several constituent peoples in the RS and the Fed-eration, by creating a House of Peoples (Federation) or Council of Peoples (RS) with equal representation of Bosniaks, Serbs and Croats. Acts of the entity parliaments may be challenged as “related to a vital interest” of one of the peoples, with reference to a rather wide list of such “interests.” In the case of such a challenge, the act would need to gain the approval of a majority of the members of each national caucus in the HoP/CoP. If it fails to get such a majority, the act is not passed.

This mechanism is very much like the “Council for Questions of the Establishment of Equality of the Nations and Nationalities of Bosnia and Herzegovina” that had been envisioned in Amendment 70 (10) of the Bos-nian constitution in 1990 (see above). Further elements of the HR’s 2002 Agreement also look like the amendments to the 1990 constitution: provi-sions for mandatory representation of all groups in the legislatures, key political positions and all public authorities, including courts.

Yet the requirement of consensus is a mechanism for preventing deci-sion-making, not facilitating it; and the paradox of nonconsensual com-mon polities at the level of the Entities seems only likely to produce the constitutional dilemma identified above: the very mechanisms meant to ensure equality of the national groups will also ensure that the representa-tives of any group may use legitimate constitutional structures to immobi-lize the constitutional system. Thus recommendations for “consociation” for Bosnia (see, e.g., Bose 2002) seem based on the normative attraction of consensus rather than on any realistic theory that would let one antici-pate that consensus can be reached on specific issues when many of those expected to do so have never consented to being part of a single polity in the first place.

Constitutional Inversion: From Popular Sovereignty to Compulsory Utopia

There is no evidence that the HR based his 2002 plan on the 1990 amend-ments to the Bosnian constitution, which hardly seems like a favorable

27 Communique by the PIC Steering Board, 27 March 2002. www.ohr.int/print/?content_id=7241.

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precedent in any event. There is also no evidence that the HR knew that the constitution of the Yugoslav federation had failed in 1989–91 because requirements of consensus let republican political elites prevent actions and decisions by central governmental organs, obstructions aimed at destroying the country and quite successfully so (see Hayden 1999: 27–52). In essence, the HR’s structures for ensuring the equality of the several peo-ples of Bosnia reproduce the mechanisms that fostered political deadlock, collapse of the constitutional systems, and war in Yugoslavia (1989–91) and then in Bosnia itself (1990–92). Nor is Bosnia the only divided state for which such mechanisms have been proposed; similar provisions for minority vetoes (the flip side of a requirement of consensus) have been required of Macedonia in order to accommodate the ethnic Albanian pop-ulation there.28 Even more recently, U.N. General Secretary Kofi Annan has proposed a constitutional structure for Cyprus that resembles very closely the Dayton constitution for Bosnia: a weak union of two almost completely self-governing component states, with a common central gov-ernment having responsibility mainly for foreign affairs, a presidency of two co-presidents (one Turk, one Greek) for three years, to be followed by a collective presidency of six members with a requirement of proportional representation of the two communities and a principle of rotation of the positions of President and Vice-President, a Parliament with require-ments of proportional representation of the two communities and some requirements for agreement by members of each for legislation to pass, and a supreme court composed of six Cyprus citizens (three Turks, three Greeks) and three non-citizens of Cyprus.29

The remarkable similarity between these failed solutions and the plans of the HR for Bosnia (and international plans for Macedonia and Cyprus) probably reflect similar definitions of the greatest dangers facing the people living in the territories to be governed under these various constitutions. In polities with populations as divided as those of the for-mer Yugoslavia, Bosnia, Macedonia and Cyprus, the primary threat felt by people is to themselves as members of one group by their putative fellow-citizens, as members of another group. Thus the primary demand of voters is protection from the very people with whom they are supposed to be fellow citizens of a common state. In this situation, a government

28 See the text of the Agreement of August 13 2001, http://www.president.gov.mk/eng/info/dogovor.htm.

29 A full text of one draft of this constitution is available at the website of the Cyprus Mail for 14 November 2002: http://www.cyprus-mail.com/November/14/news2/htm.

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that has actual power over the lives of citizens is inherently threatening in so far as it can come under the control of members of the other group(s), and the only constitutional structures that can gain popular support are those that ensure that the members of one group will not be subjected to rule by the members of the other group(s).

Consensus requirements are meant to overcome this problem by provid-ing that nothing can be done without participation of all representatives of all groups; but this kind of structure accepts the possibility that nothing may, in fact, be done. In a consensus system the risk that decision-making will be blocked is more acceptable than the risk that decisions may be taken by the members of one group against the interests of the members of another group. Thus a consensus system puts protection of minority rights ahead of ensuring that a government actually has the power to govern. Giving a third party the power to break a stalemate, as provided by the presence of the non-citizen judges on the Constitutional Court of Bosnia and Herzegovina, or the paramountcy of the HR, vitiates the prin-ciples of the very system it purports to maintain, as decisions may then be taken without the participation that is supposed to be ensured by the requirement of consensus.

The difference between the presuppositions of the HR’s system for Bosnia and the presumptions of constitutionalism as Americans, at least, have traditionally understood it are striking. James Madison had proposed in Federalist 51 that “In framing a government . . . the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” In Bosnia as the HR would struc-ture it, the great difficulty is to control the government; and in the next place enabling it to control the governed. This difference is reflected in the organization of the constitutions. The original text of the U.S. constitution establishes a system of government; the provisions to oblige that govern-ment to control itself are then appended, as amendments. The Bosnian constitution, on the other hand, places a truly impressive list of Human Rights and Fundamental Freedoms (Art. II) before those parts of the con-stitution that are meant to structure a government (Arts. III–VIII).

This difference between traditional American constitutional theory and that used to approach Bosnia may reflect the centrality of human rights to contemporary theories of democracy. Where the drafters of the U.S. constitution and the authors of The Federalist were primarily con-cerned with implementing the novel experiment of basing a government on the sovereignty of the people (see Tocqueville’s Democracy in Amer-ica), the authors of the Bosnian constitutions seem primarily concerned

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with ensuring human rights. Rather than seeing democracy as a process through which the sovereign people themselves order their own affairs, the Bosnian constitutional model sees human rights as trumping the sov-ereignty of the people. This is, of course, as explicitly an ideological con-stitutional structure as were those of state socialism – the state is there to create a predetermined utopia, and the people have no right to reject this destiny. Once this ideology is made clear, the irrelevancy of the consent of the governed is obvious. Yet it is precisely this consent that constitutes the social contract, and thus turns a population into a demos.

Sovereignty of the People?

What constitutes “a people,” entitled to sovereign statehood and also to democratic self-government? In regard to Bosnia, the OHR’s answer, on behalf of the international community, has been to proclaim the Bosnian population to be “a people,” which they clearly are not, and then to claim that its own actions are democratic even if “the people,” so proclaimed, do not accept them. One is tempted to call this system a People’s Democ-racy, and indeed, the political system of Bosnia under the suzerainty of the HR does resemble that of the former Yugoslavia under the suzerainty of the League of Communists. In both cases, unelected governments have reported to politburos of unelected politicians who claimed to be mak-ing decisions based on the highest principles of freedom, democracy and human rights. In both cases, “nationalist” politicians have been disquali-fied from public life even though they would attract voters – or rather, precisely because they would attract voters. In both cases, the adminis-trations have imposed laws and even constitutions without risking their submission to any form of public legitimation.

The HR may respond that people need to learn to be tolerant and to be democrats. There is a profoundly anti-democratic sentiment in this position, as it assumes that people are too ignorant to understand their own best interests, and an even more profound arrogance in saying that it is legitimate to deny self-identifying peoples the right to develop their political status and pursue their economic, social and cultural develop-ment because the observer thinks that their identity should be something else – in this case, that Bosnian Serbs and Herzegovinian Croats should identify themselves as Bosnians whether they want to or not (a formula-tion I have made ludicrous intentionally). Yet this is to take the metaphor of imagined communities too far, to assert that the community that the

“democracy” without a demos? 315

observer imagines is more real than the ones that the peoples actually consider themselves to form.

I am of course aware that the means of developing political status and pursuing economic, social and cultural development by the vari-ous nations in Bosnia has been through processes that, depending on whether one sees them as necessary, unfortunate or reprehensible may be called, respectively, population transfers, ethnic cleansing or geno-cide (see Hayden 1996b). Such brutal forced movements of populations have in fact been accepted elsewhere in Europe in 1922 (the “population exchange” between Greece and Turkey), 1945 (the “transfer” of 10 millions Germans from Poland, Czechoslovakia and elsewhere), 1995 (the expul-sion of 250,000 Serbs from Croatia) and 1999 (the expulsion of 100,000 Serbs from Kosovo), under the rhetorical cover that the victims actually deserved it (see Barkan 2000: 120–122 on the Sudetan Germans). While it has not been officially accepted in Cyprus, the 2002 U.N. plan for a Cypriot federation does not call for undoing the results of these population move-ments, and thus would accept them.

Of course, the response might be made that while history has been brutal, the development of human rights is aimed at ensuring that such brutalities will not be repeated. Yet if large percentages of a population, differentiated by themselves and by their putative co-citizens as members of another nation, reject inclusion in a common state, either it must be imposed upon them militarily or they must be expelled in order to let the other group(s) establish the state. Military imposition of a state on those who reject it is highly unlikely to be accomplished without massive violations of human rights, as in the West Bank and Gaza, Kosovo (until 1999) and Kashmir. Expulsion of a resisting population instead of redraw-ing boundaries to let many of them escape the state that they reject seems an odd way to support human rights.

In any event, can human rights be assured without the presence of a workable state? If so, by whom? If the answer is “by the international community,” then sovereignty is denied to the people and human rights trumps not only sovereignty but also democracy itself. Considering that human rights has now been invoked as a justification for the massive application of military force by strong states against weaker ones (for this is what “humanitarian intervention” means; see Hayden 2001), this transformation of human rights from critical stance to imperial ideology is sobering.

Perhaps, in the end, a territory in which no group can establish itself as sovereign will not make a state in fact, even if, like Bosnia, it is pronounced

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one in law. On the other hand, territories in which groups do establish their sovereignty (Kosovo under Albanians, Republika Srpska under Serbs, Turkish Republic of Northern Cyprus) are states in fact even if denied that status in law. Of course, this assertion is based on the premise that a “state” is not simply a territory that other states are prohibited from claiming, but rather a territory with a government that exercises effective authority over the population. Whether such a state is democratic is, of course, a completely different question. Democracy is based on the consent of the governed, the demos. Democracy without a demos requires the imposi-tion of “democratic values” on people who have their own ideas on how their lives, liberties, property and sacred honor should be protected, and thus seems inherently non-democratic. A dictatorship of virtue, after all, remains a dictatorship, and the failure of dictatorships to be virtuous is the starting point of democratic theory.

References

Arendt, Hanna (1966). The Origins of Totalitarianism (rev. ed.). New York:Arnautović, Suad (1996). Izbori u Bosni I Hercegovini ‘90. Sarajevo: Promocult.Austin, Granville (2000). Working a Democratic Constitution: The Indian Experience. Delhi:

Oxford University Press.Baćević, Ljiljana (1991). “Jugoslavija izmedju Prošlosti I Budućnosti,” in Lj. Baćević et al.,

Jugoslavija na Kriznoj Prekretnici. Beograd: Institut Društvenih Nauka.Barkan, Elezar (2000). The Guilt of Nations. New York: W.W. Norton.Barrington, Lowell (1995). “The Domestic and International Consequences of Citizenship

in the Soviet Successor States.” Europe-Asia Studies 47: 731–763.Bildt, Carl (1998). Peace Journey: The Struggle for Peace in Bosnia. London: Weidenfeld and

Nicolson.Binder, David (1993). “U.S. Policymakers on Bosnia Admit Error in Opposing Partition in

1992.” New York Times, Aug. 29: 8.Bogosavljević, Srdjan (2000). “The Unresolved Genocide,” in Nebojša Popov, ed., The Road

to War in Serbia: Trauma and Catharsis. Budapest: Central European University Press.Bose, Sumantra (2002). Bosnia after Dayton: Nationalist Partition and International Inter-

vention. Oxford: Oxford University Press.Burg, Steven and Paul SHOUP (1999). The War in Bosnia – Herzegovina. New York: M. E.

Sharpe.Central Intelligence Agency (2002). Balkan Battlegrounds: A Military History of the Yugoslav

Conflict, 1990–95, Vol. I. Washington, DC: Central Intelligence Agency.Djilas, Aleksa (1991). The Contested Country. Cambridge: Harvard University Press.Djilas, Milovan (1980). Wartime. New York: Harcourt, Brace, Jovanovich.Djordjević, Dimitrije (1989). “Migrations during the 1912–1913 Balkans Wars and world War

One,” in Ivan Ninić, ed., Migrations in Balkan History. Belgrade: Serbian Academy of Sciences and Arts.

Dragović-Soso, Jasna (2002). “Saviors of the Nation:” Serbia’s Intellectual Opposition and the Revival of Nationalism. Montreal: McGill-Queen’s University Press.

Goati, Vladimir (1992). “Politički Život Bosne I Hercegovine 1989–992,” in S. Bogosavljević et al., Bosna I Hercegovina izmedju Rata I Mira. Beograd: Institut Društvenih Nauka.

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—— (1991). “Stavovi Gradjana o Promenama Poitičkog Sistema: O Državnom Uredjenju I Višepartizmu,” in Lj. Baćević et al., Jugoslavija na Kriznoj Prekretnici. Beograd: Institut Društvenih Nauka.

Hayden, Robert M. (1994). “Recounting the Dead: The Rediscovery and Redefinition of Wartime Massacres in Late- and Post-Communist Yugoslavia.” In Rubie S. Watson, ed., Memory, History and opposition under State Socialism. Santa Fe: School of American research.

—— (1996a). “Constitutional Nationalism and the Logic of the Wars in Yugoslavia.’ Prob-lems of Post-Communism Sept./Oct. 1996: 25–35.

—— (1996b). “Schindler’s Fate: Genocide, Ethnic cleansing and Population Transfers.” Slavic Review 55: 727–748 and 767–778.

—— (1996c). “Imagined Communities and Real Victims: Self-Determination and Ethnic Cleansing in Yugoslavia.” American Ethnologist 23: 783- 801.

—— (1999). Blueprints for a House Divided: The Constitutional Logic of the Yugoslav Con-flicts. Ann Arbor: University of Michigan Press.

—— (2001). “Biased Justice: Humanrightsism and the International Criminal Tribunal for Yugoslavia.” Cleveland State Law Review, 47 (#4): 549–573 (1999 cover date; published 5/01).

—— (2002). “Antagonistic Tolerance: Competitive Sharing of Religious Sites in South Asia and the Balkans.” Current Anthropology 43:205–231.

Lampe, John (1996). Yugoslavia as History: Twice there was a Country. Cambridge: Cam-bridge University Press.

Lijphart, Arend (1984). Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries. New Haven: Yale University Press.

Lincoln, Abraham (1989 [1861a]). “First Inaugural Address.” In Lincoln: Speeches, Letters, Miscellaneous Writings vol. 2, pp. 215–224. New York: Library of America.

—— (1989 [1861b]). “Special Message to Congress, July 4, 1861” In Lincoln: Speeches, Letters, Miscellaneous Writings vol. 2, pp. 246–261. New York: Library of America.

—— (1989 [1865]). “Second Inaugural Address.” In Lincoln: Speeches, Letters, Miscellaneous Writings vol 2, pp. 686–687. New York: Library of America.

Mirić, Jovan (1996). Demokracija u Postkomunističim Društvima. Zagreb: Prosvjeta.OSCE Commission (1996). “The September 1996 elections in Bosnia – Herzegovina,” U.S.

congress, Commission on Security and Cooperation in Europe, Sept. 26, 1996.Pantić, Dragomir (1991). “Nacionalna Distanca Gradjana Jugoslavije,” in Lj. Baćević et al.,

Jugoslavija na Kriznoj Prekretnici. Beograd: Institut Društvenih Nauka.Radovanović, Zoran (2002). “Kakav je bio položaj administrativo izbrisanih ‘južnjaka’ u

Sloveniji u poslednjoj deceniji,” Danas (Beograd), 25–28 June.Ramet, Sabrina (2000). “Revisiting the Horrors of Bosnia: New Books about the War.” East

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versity of California Press.Smooha, Sammy (1990). “Minority Status in an Ethnic Democracy: the Status of the Arab

Minority in Israel.” Ethnic and Racial Studies 13: 389–413.—— (1997). “Ethnic Democracy: Israel as an Archetype.” Israel Studies 2: 198–241.Stavrianos, l. s. (2000). The Balkans since 1453. New York: NYU Press.Sudetic, Chuck (1998). Blood and Vengeance: One Family’s Story of the War in Bosnia. New

York: Penguin.Trifunovska, Snežana (1994). Yugoslavia through Documents. Dordrecht: Nijhoff.Varshney, Ashutosh (1993). “Contested Meanings: India’s National Identity, Hindu Nation-

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Washington: World Bank.

CHAPTER FOURTEEN

THE PROPOSED 2009 AMENDMENTS ON THE BOSNIAN CONSTITUTION AND THE CONTINUING REINVENTION

OF THE SQUARE WHEEL

Repetitive Failures: Constitutional Revision in Bosnia and Herzegovina

On October 19, 2009, at a meeting held at the Butmir NATO base in Bosnia and Herzegovina (hereafter, B&H or simply “Bosnia”), a draft of proposed amendments to the Constitution of B&H was presented to the country’s political leaders by US and EU representatives. The Butmir process has since died a quiet death, with its constitutional amendments joining a rather large number of other such proposals on the dustbin of history: from a draft new constitution for the (then still) Socialist Republic of Bos-nia & Herzegovina written by the Bosnian Parliament following the 1990 elections, through the (never agreed) Lisbon Agreement, through Vance-Owen 1, Vance-Owen 2, and Stoltenburg-Owen before and during the war, and the so-called April Packet of 2006 afterwards.1 The only constitution ever accepted for Bosnia after the end of Yugoslavia was the one that formed Annex 4 of the Dayton Agreement and which is still in force, but which pretty much everyone acknowledges does not actually provide the framework for a workable state.2

Yet the saga of the Butmir process is still important, because the issue of Bosnian constitutional reform refuses to die, rejected time after time yet reappearing again and again, from 1990 until the present, and focusing always on the same basic problems. This article thus discusses an issue

1   Steven Burg and Paul Shoup, The War in Bosnia – Herzegovina (1999) provide excellent discussions of the various internationally mediated constitutional proposals for Bosnia, 1992–94. The draft of the proposed new constitution after the 1990 elections presumably resides in the archives of the Bosnian parliament but certainly also resides in my own files. The April packet was discussed at a Woodrow Wilson center panel on May 10, 2006; a useful summary is at http://www.wilsoncenter.org/index.cfm?topic_id=1422&fuseaction=topics .event_summary&event_id=182193.

2 I am aware of no view that says that the Dayton state is workable without the interna-tional presence, and so do not see it necessary to string citations on its unworkability; but the logic of its unworkability is set out in Robert M. Hayden, Blueprints for a House Divided: The Constitutional Logic of the Yugoslav Conflicts (Ann Arbor: University of Michigan Press, 1999), at pp. 123–140.

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that is still alive even if the specifics of the proposed amendments are dead. Further, even if the specifics of the various constitutional propos-als have changed, their logic, and the logic behind their lack of universal acceptance, remains constant. Thus an analysis of the failed Butmir pro-posals can tell us quite a lot about why the constitutional issues surround-ing Bosnia continue to be both salient and unsolveable. But an analysis of the Butmir proposals in the context of other failed efforts to draft a constitutional structure for Bosnia can also tell us quite a lot about how seemingly reasonable proposals may actually be unworkable, a lesson that may have currency for cases other than Bosnia.

Press accounts of the Butmir events varied, and the amendments them-selves have never been much discussed, much less seen. Actually, that is almost always a problem in discussing Bosnian constitutional proposals: most of the time the drafts are not published, which makes discussion of them difficult at best; but of course, that may well be the point of not pub-lishing them. In any event, as far as I know, the Butmir draft was not pub-lished, but I do have it, so I refer directly to its text in what follows. I also have the draft amendments from 25 November, which rendered much of the first Butmir packet inoperative. “Butmir” thus became a process, and there were at least two Butmir documents, referred to hereafter as Butmir 1 (the draft presented on Oct. 19) and Butmir 2 (the draft of Nov. 25).

The Analysis of Constitutional Proposals, and Specifically in Bosnia

It must be stressed that the analysis presented here is of the Butmir pro-posals, not the Butmir process. This article differs from most writing on Bosnian constitutional amendments by analyzing the amendments as integrated components of a proposed constitution, from the point of view of constitutional law rather than those of fields such as theoretical political science or international relations or peace studies. Some ana-lysts have said disparagingly that “The details of constitutional change are often arcane and legalist,”3 but it is just those “arcane and legalistic” struc-tures that would be drawn on to actually structure a government under post-Dayton revisions. For constitutional analysis, not only do the “arcane and legalistic” details matter, but the whole point is to examine how the

3 Gearóid Ó Tuathail (Gerard Toal), John O’Loughlin, and Dino Djipa, “Bosnia- Herzegovina Ten Years after Dayton: Constitutional Change and Public Opinion,” Eurasian Geography and Economics, 2006, 47, No. 1, pp. 61–75.

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various provisions in the several Articles interweave. In the case of Bosnia, this kind of analysis is rarely undertaken, with readers being left with, at best, a short list of proposed reforms but no sense of the details of them, nor any effort at all to show how the various reforms, if enacted, would interact to structure a single system of government.4 Without the details of each proposed amendment and an analysis of the ways the parts would form a whole, however, it is simply not possible to assess what the amend-ments would actually accomplish, as opposed to what the people pushing them say that they would accomplish. It is the aim of this article to pro-vide this kind of reality checkpoint for a literature that is otherwise largely hortative about what should or even must be done to change the Dayton constitution, but almost totally lacking in analyses of how proposed con-stitutional changes might actually be expected to work.

To set the stage, let me immediately state briefly why and how the Day-ton Constitution did not set up a workable or viable state. Frankly, I am not sure how anyone ever could have thought that it did. The Dayton Constitution contains provisions that require consensus among the con-stituent peoples of B&H – Bosniaks, Croats and Serbs – for decisions to be made. A requirement of consensus is, of course, primarily a mechanism for blocking decision-making, and that is what happened immediately after Dayton. The unworkability of the Dayton structure was addressed in 1997 by the so-called Bonn Powers for the High Representative, which set up the mechanisms for a dictatorship of the protectariate under civicist self-management (for those who still recall the bizarre phrasing of Yugoslav self-management socialism)5 but, rather obviously, had little if any legiti-macy in the eyes of the substantial portions of the B&H population whose

4 See, e.g., Sofia Sebastian, “State Building in Divided Societies: The Reform of Dayton in Bosnia and Herzegovina,” Journal of Intervention & Statebuilding 4: 323–344 (2010). This article provides a brief list (at p. 335) of reforms proposed in the “April Packet” in 2006 and a similar list is found in a report by one of the American negotiators (R. Bruce Hitchner, “From Dayton to Brussels: The Story Behind the Constitutional and Governmental Reform Process in Bosnia and Herzegovina,” Fletcher Forum 30: 125–136 (2006). In neither article is there any discussion of how these various separate amendments would fit together, nor any details on any of them individually.

5 While the invocation is admittedly sardonic, I’m not joking, actually: in the metaphor, the Peace Implementation Council (PIC) stands in for the former Central Committee (CK) of the LCY, an unelected body that claims to embody the highest moral authority and issues directions to the administrative organ, with the High Rep standing in the place of the former President of the Federal Executive Council (SIV), and excluding from pub-lic life, without any pretense of due process, those who in the socialist period were said to lack “political and moral suitability.” The enemy of both was, of course, nationalism (though the Communists at least nominally feared the class enemy as well). However,

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leaders were using the Dayton mechanisms to block possible actions by the Bosnian state.

Note that I refer to the population whose leaders were using these pow-ers. These leaders were elected, repeatedly, by the Bosnian Serbs and Her-zegovinian Croats,6 and there is little credible evidence that these peoples have ever accepted the imposition of anything more real than nominal Bosnian state authority over them – that was, after all, what the war was about. Lest one doubt this last comment, note the similarities in the posi-tions found to exist by Cyrus Vance & David Owen in October 1992 in their negotiations with the parties and by Bruce Hitchner in his efforts to help write the April Packet, in December 2005:

One of the parties initially advocated a centralized, unitary State, arranged into a number of regions possessing merely administrative functions. Another party demanded that the country should be divided into three independent States, respectively for the Muslim, Serb and Croat peoples. . . . The third party supported a middle position.7

Put succinctly, there are two distinct visions of the future of Bosnia being put forth by the parties that define their positions on a state level in con-stitutional reform: one unitary and citizen based (the Bosniac party posi-tions), the other part ethnic/part citizen based a federal (Serb and Croat, though in the case of the latter the current federal structure of entities is unacceptable).8

But this similarity should not be surprising, since the same divisions were also present before the war and in all negotiations leading up to it.

This is a critical point, in fact: when dealing with the reaction of Bosnian parties to constitutional provisions, it must always be kept in mind that there is no single Bosnian electorate, but rather three separate electorates (with a few outliers). Neither is this a new situation, or a “post-socialist” or “post-conflict” one. The ethnic (or national) divisions in Bosnia have been

the former Communist elite had fewer perks and far less income than the post-Dayton “internationals.”

6 I specify Herzegovinian Croats as it is generally thought that the Croats of Bosnia, proper, and of Posavina, were more inclined towards accepting inclusion in a state of Bosnia and Herzegovina than were the Croats of Herzegovina, who went on to proclaim the Croatian Community of Herzeg-Bosna. The Croats of Bosnia wound up among the great losers of the war, being largely displaced, and relatively few Croats remain in Bosnia outside of Herzegovina.

7 Vance & Owen, International Conference on the Former Yugoslavia, doc. STC/2/2, 27 Oct. 1992. The three parties were, respectively, Muslims, Serbs and Croats.

8 R. Bruce Hitchner, “Report to the Peace Implementation Council, Paris, France, December 14, 2005: The Process and Prospect of the Constitutional Reform Process in Bosnia and Herzegovina,” p. 7.

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the primary feature of the political landscape in the country for more than a century, and the Dayton constitution simply corresponds to the reality of Bosnian politics. Since at least 1875–78, the stable configuration of Bos-nian politics has been of contestation for dominance by the three largest communities/nations, called now Bosniaks, Croats and Serbs; but in 1992 Muslims, Croats and Serbs, and a century earlier Muslims/Turks, Catholics and Orthodox Christians. Throughout this period, virtually every politi-cal or social issue has been transformed into this contestation, and so have politics. As former CIA analyst David Kanin has stated a number of times in public comments, this configuration is hardly a post-communist aberration, but rather obtained in Bosnia in the late Ottoman Empire, the Austro-Hungarian empire, the Kingdom of Yugoslavia, the NDH, socialist Yugoslavia and whatever has come after socialism in Bosnia. Thus this basic division has held in political systems ranging from Imperial through Royal through Fascist through Socialist and now whatever we can call the post-Communist system of free and fair elections, the results of which are routinely branded not democratic by external observers, since they always give victory to Bosniak, Croat and Serb nationalist parties.9

The results in the late-communist and post-Dayton elections are not, therefore, aberrations. Since the first election ever held in Bosnia, in 1910, every relatively free and fair election has produced the same result: overwhelmingly, the population has partitioned itself as three separate electorates, with one Serb party, one Muslim party, and one Croat party getting the majority of votes from its own community. This robust elec-toral configuration has been echoed in the various censuses, even when the states running the census did not want to give the people the opportu-nity to declare themselves by national identity. Thus the 1921 census asked about religion rather than nation, the 1931 language rather than nation; but when the German Army cross-referenced these data in 1941, they pro-duced a highly accurate and detailed map of who was where among the national groups.10 By the 1991 census, respondents’ self-identification by nationality was very common.11

   9 The data for this paragraph are presented in Robert M. Hayden, “Moral Vision and Impaired Insight: the Imagining of Other Peoples’ Communities in Bosnia.” Current Anthropology, 48: 105–131 (2007).

10 This map can be seen at http://corona.eps.pitt.edu/Website/yugoslavia.html.11   See “Imagined Communities and Real Victims: Self-Determination and Ethnic Cleans-

ing in Yugoslavia.” American Ethnologist, 23(4): 783–801 (Nov. 1996).

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With this in mind, the opinion by the Venice Commission, the Council of Europe’s advisory body on constitutional issues, that in Bosnian con-stitutions that recognize the different ethno-nations “all issues will be regarded in the light of whether a proposal favours the specific interests of the respective peoples and not whether it contributes to the common weal” (my emphasis),12 is misplaced: for more than a century and regard-less of the formal constitutional/political system in place at any given moment, virtually all issues have been and are regarded in the light of whether they favor the specific interests of the respective peoples, and the voters of what are, de facto, the three separate electorates vote accord-ingly. Not only that, once in power, the political representatives of each national group adopt policies and practices that favor primarily, even exclusively, only the members of their own group. Whether political life in Bosnia should be like this is irrelevant – it is like this, and every Bosnian politician, and virtually all Bosnians, know it. This is the background in which constitutional proposals are evaluated in Bosnia, by Bosnians, the people, after all, who live there and plan to continue to do so, not matter how unfortunate their views look to foreigners who don’t, and won’t, live under the rules they propose for the locals.13 Considering the robust and consistent nature of the internal divisions of the Bosnian population into ethno-national groups, constitutional proposals that do not provide these peoples with what they will regard as workable protections against each other are never likely to gain support from all groups, or even from any of them.

Square Wheels in Constitutional Machinery

The cycle of failed constitutional proposals that have been seen in Bos-nia since at least 1990 may be seen as repeated attempts to create a con-

12 European Commission for Democracy through Law (Venice commission), “Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative,” CDL-AD (2005) 04.

13 To forestall those readers who might object to my seeming to buy into the “ancient hatreds” school of thought in Bosnia or Yugoslavia, I recommend works such as Horo-wotiz’s Ethnic Groups in Conflict, Mann’s Dark Side of Democracy, or even the normative material introduced by Ljiphart in arguing for “consociation.” There is clearly a structural problem for multi-national/ethnic democracies that goes well beyond Yugoslavia/Bosnia and may account for the fact that Europe is now down to only two explicitly multi-national federations, Belgium and Switzerland.

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stitutional mechanism that will let the state move forward. Yet careful attention to the details of the proposals, rather than to the rhetorics accompanying them by the various political actors involved, show that the wheels being proposed to accomplish this movement cannot actually roll. The reason for this is that proposals to create a workable state do not actually offer firm protections of each group against the others, but struc-tures that do afford such firm protections do not offer a workable state. In this regard, the various efforts to create a workable Bosnian state have always amounted to efforts to invent square wheels.

This metaphor is especially useful in regard to the initial Butmir pro-posals, which make literally no sense if the aim was to create a system offering protection to the peoples of Bosnia, as such, vis a vis each other. Instead, the first system offered up at Butmir makes sense only if it is seen as a mechanism for imposing rule over Bosnia by a very small num-ber of politicians, even those only of one ethno-national group, who would thereby be formally empowered to make all political decisions in the country regardless of whether the members of other ethno-national groups accepted them. Once its details are considered, the specific gov-ernmental system proposed at Butmir seems not only incongruous with most definitions of democratic governance, but also strikingly at odds with the sentiments of very large and non-randomly defined proportions of the population of Bosnia and Herzegovina. It is difficult to envision such a sys-tem gaining legitimacy with such people, and proposing a system unlikely to be received as legitimate by a large percentage of its putative subjects seems very much like inventing a square wheel. The second Butmir pro-posals seem to reflect an acceptance of the unworkability of the first set, but then square the wheels themselves by reverting to yet another set of institutions that cannot found a workable state. The argument in this article may actually be generalizeable to other cases, since it uses quite standard techniques of constitutional and legal analysis to consider the interplay of the various components of proposed Bosnian constitutions. Thus I conclude with comparisons to other cases of constitutional struc-tures in deeply partitioned societies. We begin, however, with the current state of constitutional affairs in Bosnia and Herzegovina.

The Dayton Constitution: All Checks and Balances

When the parties gathered in Dayton in 1995, the Americans had prepared a draft constitution for them. This document, which to my knowledge has

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never been published (but which was leaked to me at the time by several sources), had a number of features that eventually did make their way, some more modified than others, into the Dayton constitution:

•  a nine-member Presidency, 6 members directly elected from the Fed-eration of Bosnia & Herzegovina (FBH), 3 from the Republika Srpska (RS), with a rotating chair; this became the three-member rotating Presidency.

•  A 9-member Constitutional court, four members from the FBH, 2 from RS, three internationals; this remained, more or less.

•  A central bank.•  Provision for a Council of Ministers, appointed by the Presidency; this

remained, more or less.

However, what was not accepted was the proposed Parliamentary Assem-bly, which was to be composed of one chamber of 36 members, two-thirds elected from the FBH, one-third elected from the RS. Offsetting this implied equal representation of the three constituent peoples, the draft provided that a simple majority of the members elected would con-stitute a quorum, and that decision would be passed by a simple majority of those present and voting, “provided that the dissenting votes did not include more than two-thirds of the members elected from either Entity.” Since there was no provision that required even the presence of any mem-bers from either entity for there to be a quorum, this Assembly could have been called into session by 19 members from the FBH, with none from the RS even present, and then 10 of them could make decisions. Even more strikingly, the American draft at Dayton provided that the constitution could be amended by “a decision of the Parliamentary Assembly, provided that the majority includes a majority of the Members from the Federa-tion who are present and voting, and a majority of the Members from the Republika Srpska who are present and voting.” By this provision, too, 19 members from the FBH could have constituted themselves as a quorum, and then 10 of them vote to amend the constitution, with no participation or even presence of members from the RS required.

Not surprisingly, that structure was not acceptable to the Bosnian Serbs and to at least some of the Croats in Dayton. What ultimately emerged in the Dayton constitution was a bicameral legislature, with a House of Representatives of 42, 28 from the FBH and 14 from the RS, and a House of the Peoples, of 15, 3 each of the constituent nations, Bosniaks, Serbs and Croats, and with the provision that a quorum required at least three

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members of each of thee groups. These members were to be selected by the House of the Peoples of the FBH (the Bosniaks and Croats) and the National Assembly of the RS (the Serbs).

Since legislation required the approval of both chambers, any attempt to simply ignore the interests of any of the constituent peoples could be blocked in the HoP, since failure of at least three members from any group to attend would prevent a quorum.

This was, of course, a system of checks and balances, but heavily weighted towards the checks. By contrast, the structure proposed by the Americans in Dayton would have had no checks and no balance at all.

Butmir 1: From Checks and Balances to Unchecked Parliamentary Supremacy

With this in mind, the most striking aspect of the initial Butmir proposals (Butmir 1, Oct. 19, 2009) was their effort to scrap almost completely the present (Dayton) constitution’s bicameral parliamentary structure and put in its place something quite like the unbalanced, unchecked struc-ture originally proposed by the Americans at Dayton and rejected there. Butmir 1 would replace the present Parliamentary Assembly with what would be for all practical purposes a unicameral legislature, the House of Representatives, specified as the sole bearer of “Legislative power for B&H.” This house would have 87 seats, with 3 being guaranteed for people not members of the constituent peoples (i.e. Bosniaks, Croats & Serbs). No provision was made for proportional or equal representation of the con-stituent nations, and in fact other than stipulating that the members were to be elected “on the basis of general and equal voting rights by direct & secret ballots,” all other conditions of election were to be “stipulated by a law of Bosnia & Herzegovina.” Further, while the provision of having one Chair and two Deputy Chairs was maintained, with the specification that no two of them may be of the same constituent people, the rotation was dropped, and Deputy Chairs would seem to have no function other then decorative.

The House of the Peoples would continue, but expressly not as a legis-lative body, and with its membership elected from among the members of the House of Representatives (reminiscent, perhaps unintentionally, of the old “delegate system” in socialist Yugoslavia?). No longer is it speci-fied that the HoP would be composed of specified numbers of Bosniaks, Serbs and Croats, though 7 members would “represent” each group and

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thereby form a “caucus” of that group. The HoP’s sole function would be to afford an opportunity for review of whether a law passed by the HoReps is “destructive of a vital national interest” (VNI) of a constituent people, a position that may be adopted by a majority of the members of a caucus. At this point it gets complicated, but let me just say that the complications ensure that it would be virtually impossible to block legis-lation as destructive to the national interests of a group, and if a decision were required it would not be made by the HoP itself, but rather by the Constitutional Court, which does not have provisions, either, to object to violation of a vital national interest. Of course, the Constitutional Court already has the right to determine whether a VNI exists regardless of what representatives of that nation may think, which is perhaps one reason why the protection of VNI is rarely sought even under the Dayton system, and the co-legislative function of the HoP under Dayton was sought as, and functions as, the primary protection against ethnic majoritarian deci-sion making against Serbs, who insist on its being retained.

So – thus far, a single house with provisions for representation of peo-ple not among the constituent nations but not for representation of the constituent nations themselves, especially since the voting rules provide that in almost all cases, a quorum is simply a majority of all members elected (IV.6.c [p. 9]), and in almost all cases, decisions are by a major-ity of those present a voting (IV.9.a). Thus, one could easily envision a situation in which a quorum could exclude all members of a constituent nation, and take decisions that then include only the members of one constituent people. To be sure, there is a seeming provision for a qualified majority (IV.9.b) but in practice there is no protection at all, since in the final analysis a decision may be taken by a majority of those present and voting, provided that the dissenting votes do not include two thirds or more of the Members from either entity – since a quorum can be formed with literally no members from the RS, they obviously would not neces-sarily be around to vote no. So, if a quorum is 44 members, and a majority of them (assuming they all vote) is 23, that few members would be literally all-powerful.

Republika Srpska Prime Minister Milorad Dodik probably recalls the breakdown in mid-October 1991 of the Bosnian parliament elected in 1990 in which he served as one of the few Serb members not from Karadzic’s SDS. Late at night and after 20 hours of debate on the sovereignty motion favored by the Muslims and Croats but rejected by the Serbs, the Speaker, Serb Momčilo Krajšnik, declared a six-hour recess in accordance with the rules of the Parliament. However, the Muslims and Croats reconvened

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without the Speaker or the Serb members after only one hour, declared themselves a quorum, and passed the resolution, contrary to the rules of the Parliament and even to the terms of that resolution itself, which promised to prevent such ethnic outvoting.14 Since the present 42- member HoReps has 22 Bosniak members (20 of them from the FBH), a repeat of this kind of scenario is not at all far-fetched.15

Even more strikingly, under Butmir 1, the Amendment procedure of the Dayton Constitution would remain unchanged:

X.1. This constitution may be amended by a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the House of Representatives.

This provision does not require the presence of any members from the RS at a session to amend the constitution – it is not a new quorum require-ment. Instead, it only states that for an amendment to pass it would have to be voted for by two-thirds of the RS members who happen to be there. So, representatives from the Federation could constitute themselves as a quorum in the absence of any members from the RS, and then two-thirds of them could amend the Constitution! Again, with a quorum of 44, 30 members may amend the Constitution at will. To be sure, there is still the provision for the HoP to raise an issue but, as I have noted, that mecha-nism is designed to ensure that it cannot actually be carried out.

From the perspective of American constitutional theory, this Amend-ment procedure carries the Butmir 1 draft into absurdity, since it makes constitutional amendment little different from ordinary legislation. As Chief Justice Marshall said in Marbury v Madison in 1803, “the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alter-able when the legislature shall please to alter it . . . if the latter part be true, then written constitutions are absurd.” One might well imagine what his comments would be on the Butmir draft.

There are other elements of parliamentary supremacy in the Butmir 1 amendments. The Presidency is to be composed of a President and two Vice-Presidents, again no two of them from the same constituent people,

14 See Hayden, Blueprints for a House Divided, pp. 96–97.15 Figures on Bosniak membership in HoReps is from “Tihić traži od Ustavnog Suda BiH

ukidanje entitetskog glasanja,” Dnevni Avaz 29.11.09.

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but elected by the HoReps from among its own members instead of being directly elected, as at present. The method of selecting the President, “by rotation or otherwise,” would be done by the very same HoReps. If there is no rotation, the Vice-Presidents are as purely decorative as the Vice-Chairs of the HoReps and HoP, except for acting as Supreme Commander of the Armed Forces “in accordance with the law” [but of course that law could be changed by that same HoReps] and in appointing the members of the Board of Directors of the Central Bank (V.4.b).

The supremacy of the HoReps continues with the executive power, embodied in a Council of Ministers “accountable to the citizens through the HoReps” (Vbis). This government would assume some of the powers currently held by the Presidency. The Prime Minister would be elected by the HoReps on the nomination of the President (not the Presidency!), who would her- or himself have been elected by the same HoReps. And then the Council of Ministers would be elected by the same HoReps on presen-tation of a slate by the PM that that House has elected, on the nomination of the President that the House has elected.

Recalling that a majority of those elected is a quorum and all of these decisions could be made by a majority of those present and voting, it seems that everything could be decided by 23 Members, all of whom might just happen to be members of one party and of one constituent nation.

Americans are used to a concept of balance of powers, but that is cer-tainly not proposed here. Referring again to classic American constitutional theory, in The Federalist Papers 51, James Madison said that “In framing a government . . . the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself.” There would be no control on government under Butmir 1, no balance of powers, no division of functions.

Butmir 2: Part-way Back towards Dayton

That Butmir 1 would be rejected by Dodik, among others, should have been no surprise to anyone. The only surprise may be the amount of backtracking from Butmir 1 that then followed, especially in regard to the Parliamentary Assembly. None the less, Butmir 2 also contained radical departures from Dayton, so much that it might be acceptable to some parties only if they were to be convinced that its mechanisms are no more workable, in the end, than those of Dayton.

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Parliamentary Assembly under Butmir 2:The Butmir 2 draft abandons the idea of having the legislative power rest only in the HoReps, and in fact increases the number of members of the HoP from 15 to 21, two-thirds from the territory of the FBH, the remainder from the RS; mandating at least 6 delegates from each of the constituent peoples; that a quorum would be 13 but that it must include at least 4 Bosniak, 4 Serb and 4 Croat delegates. This change allows for members who are not among the constituent peoples, but actually ups the protec-tions for each of these CPs by increasing the quorum rules. The primary change from Dayton is that while the members of the HoP would still be elected by the legislatures of the entities, these elections would be “held in accordance with an election law to be adopted by the Parliamentary Assembly.” In other words, the actions of the entity parliaments would be limited by the state parliament, and there is little reason for the RS to accept such limitation.

As is true under Dayton, “all legislation shall require the approval of both chambers;” this provision had been dropped by Butmir 1’s proposed elimination of the HoP as a legislative body.

As for the HoReps, Butmir 2, like Butmir 1, would increase its size from 42 to 87, including 3 seats for people who are not members of the CPs. However, Butmir 2 specifies that two-thirds of the HoReps would be elected from the territory of the FBH, including 2 of the non-CP members, and one third (including 1 non-CP member) from the territory of the RS; this two-thirds/one-third division being another restitution of a Dayton formula in place of the changes proposed by Butmir 1.

The quorum rules for HoReps (majority of those elected) and decision-making rules (majority of those present and voting) remain as they were under Dayton, which still allows for the possibility of all the Bosniaks to take over the HoReps with no participation from others, though the continued existence of the Dayton HoP provides some control over this. There is an odd inconsistency, though, in the rules on dissolution of the two houses, since the HoP may be dissolved by that House itself, “pro-vided that the decision to dissolve is approved by at least two of the Con-stituent Peoples caucuses,” while the HoReps may dissolve itself only if the decision to do so is approved by the majority of members from each CP caucus. The HoReps dissolution power is new; the HoP one was in Dayton and always seemed meant primarily as a threat to the Serbs, so one wonders why they would accept it considering the institution of the more protective rule on dissolving the HoReps.

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One Butmir 1 change from Dayton that is retained in Butmir 2, though, is the reduction of the co-chairs of the houses to purely decorative posi-tions, with no constitutional powers, and no rule for rotation among the Chair and co-Chairs. Further, it is specified that the Chair of the HoReps “shall represent the Parliamentary Assembly and is responsible for its efficient functioning,” wording that seems to subordinate the HoP to this member of the HoReps.

Another Butmir 1 change from Dayton that is retained in Butmir 2 is to replace the specification of Bosniaks, Croats and Serbs in various clauses with the term “constituent peoples.” For example, the clause about dis-solving the HoP in the Dayton constitution says this may happen with the approval of a majority that includes “the majority of delegates from at least two of the Bosniac, Croat or Serb peoples,” but the phrase “Bos-nian, Croat or Serb peoples” is to be replaced, under both Butmir drafts, with “constituent peoples caucuses.” The removal of the specificity opens up the possibility of creating more “constituent peoples caucuses,” since the Preamble refers to “Bosniacs, Croats and Serbs, as constituent peoples (along with Others).” Such a move would, of course, dilute the protections given the Bosniaks, Croats and Serbs, especially since any Others caucus would be bound to be small. Considering that the famed “constituent peoples” decision of the Constitutional Court of B&H was made by the Bosniaks with the support of international members, and opposed by the Croat and Serb judges, there is little reason for either of those peoples to accept the potential for reduction of their constitutional protections that is made by dropping the specificity of the names Bosniak, Croat and Serb peoples for the potentially vague “constituent peoples.”

One additional change from Dayton is that it is exclusively the HoReps, instead of the Parliamentary Assembly (which would include the HoP) that is empowered to enact the budget (Art. VIII). Since, as we have seen, a group of HoP members solely from the FBH, and possibly even solely from the Bosniak nation, can make decisions in the HoReps, this provision is a direct threat to the RS, since that entity could be bound to financial obligations that it had no role in assuming.

The New Presidency:The two Butmir drafts included radical changes in the Presidency of B&H. Butmir 2 involved the HoP in elections, which Butmir 1 did not. By Butmir 2, instead of being directly elected, the President and two Vice-Presidents would be elected from amongst members of the HoReps, nominated by that body, with the HoP then voting by CP caucus to form

the proposed 2009 amendments on the bosnian constitution 333

a slate of proposed candidates, said slate to be sent back to the HoReps for confirmation. This complicated election procedure would be for a job that has reduced competencies overall compared to Dayton, and for the Vice-Presidents, almost none at all; unlike the Dayton system, there is no mandate for rotating the post of President amongst the members of the Presidency, so the Vice-Presidents may be as purely decorative for most purposes as the Vice-Chairs of the Houses of the Parliamentary Assembly. The Presidency as such must act, by consensus, only as supreme com-mander of the armed forces (but subject to a law of B&H, which is odd in that it seems to subordinate a constitutional power to an ordinary law; but Yugoslav constitutions were full of such stuff ); to nominate a candi-date for President of the Council of Ministers (see below); appoint the members of the Board of Directors of the Central Bank; and in regard to state honors and pardons. Otherwise it is exclusively the President (thus excluding the other members of the Presidency) who has functions, including appointment/dismissal of ambassadors, convening sessions of the Council of Ministers and Parliamentary Assembly, proposing agendas for those meetings and participating in them. There is also an odd catch-all empowerment of “such other functions as may be necessary to carry out his or her duties,” leaving “necessary” apparently to the unchecked discretion of the President.

The Council of Ministers:The CoM is doubtless the biggest innovation of Butmir, since it would acquire powers granted under Dayton to the Presidency. However, unlike the Dayton presidency, the CoM would be indirectly elected, by the HoReps upon the nomination of the Presidency, with complicated procedures thereafter in the event that the nominee does not gain a majority of the votes of those present and voting. The CoM would thus not be accountable to voters, but only “to the citizens of B&H through the HoReps.” Thus But-mir 2 continues the Butmir 1 plan of shielding anybody but the members of the HoReps from accountability to voters. The President of the CoM, once confirmed, would not assume office until the slate of ministers that she or he has proposed to the HoReps is accepted by that body; the mandate ter-minates if that is not achieved within 30 days after the CoM is confirmed. This provision seems an odd variant of the usual procedural in parliamen-tary systems that a PM nominee prove his or her mandate, odd because in such systems the nomination comes from within the Parliament, not from outside of it, as here. This provision of Butmir 2 may be a carry-over from Butmir 1’s plan of total supremacy of the HoReps.

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The competencies of the CoM are fairly straightforward, reducing the President to primarily a ceremonial role. As noted, this is common enough in parliamentary systems as opposed to presidential ones, and the Butmir 2 plan may mix them because it is a retreat from unbridled par-liamentary supremacy.

New Competencies/Responsibilities/Enumerated Powers:Both Butmir drafts would introduce major changes in the Dayton alloca-tion of governmental powers and responsibility. Dayton had essentially created a “government” with almost no authority within its borders, essentially an empty shell of a state with power over a seat in the UN but not over its own putative territory. Since then some powers have accreted to the state authorities. Interestingly, in the Butmir drafts these are not enumerated as such but rather the attempt is made to incorporate them by saying that “the responsibilities that have been assumed by B&H as agreed by the Entities may be returned to the Entities with unanimous consent of B&H and both entities,” a condition that, obviously enough, is never likely to be met. There seems little reason for the RS or for that mat-ter the FBH to agree to cement into place powers that were transferred to the state government largely by coercion. There are also new enumerated powers: defense and intelligence, policy and regulation of migration, refu-gees, immigration and asylum (minor changes from Dayton), establish-ment and operation of a single indirect taxation system, and regulation of international transportation. But more interesting are the additional powers granted indirectly, or at least without much notice.

Shared Responsibilities (III.2bis) are an innovation not seen in Dayton. Shared powers are always a tricky constitutional category, especially since there is a strong tendency for the larger authority to claim supremacy. Some of the new areas of state competence are exceptionally broad and important: internal security, taxation, electoral processes, judiciary, and local self-governance. This seems like an attempt to limit entity (read: RS) independence via the back door.

Relations with International Organizations: an even more back-door, maybe basement door, grant of potentially very broad authority is attempted in the Butmir proposals that “When required by the European Union in the process of accession to the EU, B&H shall have the respon-sibility for adopting legislation, establishing institutions and ensuring implementation of any such commitments or obligations.” It is not, of course, known what the EU might choose to demand, but this provi-

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sion seems to grant to the EU, essentially, the power to give authority to the B&H authorities to do whatever the EU wants, regardless of the constitution of Bosnia and Herzegovina and regardless of what an Entity might want.

It is difficult to understand why an Entity would agree to giving the B&H authorities such powers. The only reason to do so is under the assur-ance that the provisions of the Constitution will continue to let the Entity block the operation of B&H. That is, the new powers given to the B&H government are not threatening as long as the B&H government can be blocked. The restitution of the Dayton Parliamentary Assembly provides such a blocking mechanism, while the expanded competencies of the B&H authorities ensure that the blockades of legislative processes will be used. The rest of this paper explains why this is so.

The Constitutional Dilemma: Ethnic Stalemate or Structured Domination

It is often said that the Dayton Constitution “institutionalized ethnic divi-sions” in Bosnia, but this is simplistic at best. Dayton incorporated the basic social divisions in Bosnian society, but, as noted in the first section of this paper, it did not create them, and they were not created by the war. Neither is such a division unique to Bosnia. After all, the same logic that causes the Bosnian population to partition itself into differing electorates also operated in Yugoslavia in the 1990s, and earlier when elections were held there, and the world knows many other similar cases.

Donald Horowitz wrote in Ethnic Groups in Conflict (1985) about ter-ritories in which the census is an election and the election a census, and though he did not refer to Bosnia his analysis is apt (see also Michael Mann’s The Dark Side of Democracy, which has a good analysis of Yugo-slavia). Far from being a uniquely Bosnian post-communist phenomenon, the self-partitioning of the Bosnian population into the national groups that has been a constant throughout Bosnia’s modern history is sim-ply a manifestation of a kind of conflict found in other post-colonial or post-imperial settings: e.g. Anatolia 1920–23, the NDH 1945, Silesia 1945, Bohemia/Sudetenland 1945, Poland/Ukraine 1945, Bengal 1946, Punjab 1947, Palestine 1948, Rwanda/Burundi since the early 1960s, Cyprus 1964 through 1974, Armenia/Azerbaijan since 1991, Croatia/RSK 1991–95, to name a few. All of these led to de facto (sometimes de jure) partitions and what is now called ethnic cleansing, though it is sometimes called geno-cide or population transfer, depending on whether the writer concerned

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approves the result, condemns it or finds it regrettable but inevitable or simply necessary.16

Throughout this historical trajectory, peace has held only when gov-ernment of Bosnia has not been democratic, and thus has not depended on either the consent of the governed or the will of the peoples as expressed in any form of free elections.17 This is not to say that relations have always been tense. To the contrary, long-term patterns of relations between peoples who define themselves as Self and Other groups and live intermingled but not intermarrying may be seen as expressing a kind of “antagonistic tolerance.” Briefly, the pattern in such cases, from research results from widely varying geographical and historical contexts, is that relations are peaceful, even cordial, as long as dominance is clear, either of an external power over all groups or of one group over the other; but when dominance is unclear, violence ensues, often leading to partition/ethnic cleansing.18 The problem is Bosnia is that establishing such domi-nation by any one group over the others would require war and probably lead to ethnic cleansing, since the subordinated would have little to look forward to as minorities in a state premised on the superior sovereignty of another group.

In this kind of political and social environment, all communities can reasonably, and realistically, expect to be in fundamentally competitive relations, at best, with other communities. The logic of the Prisoners’ Dilemma is fully operative here, and it is not just a theoretical exercise. A political leader of one group who relied on the leaders of other groups to protect the interests of his people rather than theirs, would be act-ing recklessly. Further, compromise on vital interests is dangerous, and almost any issue can be polarized as a conflict of interest between the groups, thus rendering any conflict as vital, since even a small erosion of position is dangerous.

In such a setting, a politician will get support by promising to defend the interests of his/her own community against the others, and compro-mise risks accepting structural inferiority, thus dominance by other com-

16 See Robert M. Hayden, “Schindler’s Fate: Genocide, Ethnic Cleansing and Popula-tions transfers,” Slavic Review 1996.

17 Data supporting these arguments can be found in Hayden, “Moral Vision and Impaired Insight,” and Robert M. Hayden, “Democracy without a Demos? The Bosnian Constitutional Experiment and the Intentional Construction of Nonfunctioning States.” East European Politics & Societies 19(#2): 226–259 (May 2005).

18 See, e.g., Robert M. Hayden, “Antagonistic Tolerance: Competitive Sharing of Reli-gious Sites,” Current Anthropology 2002.

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munities. Despite the rhetoric that minorities are protected in Europe, in the modern period there has been little evidence of this in practice. The minorities that were to be protected after World War I no longer exist where they then formed minorities (Jews, and Germans outside of Ger-many); and the minorities that were to be protected in the former Yugo-slavia have also largely vanished: Serbs from Croatia, non-Serbs from RS (and earlier, non-Serbs from the RSK), non-Muslims from many Muslim- dominated parts of the Federation, non-Croats from Croat-dominated parts of the Federation; Serbs in Kosovo apart from the enclaves and northern Mitrovica; Albanians from the Serbian enclaves and northern Mitrovica, and the Albanians and ethnic Macedonians in Macedonia are also now as territorially divided as Serbs and Albanians in Kosovo before 1999.

Bosnian history certainly offers little evidence of political interaction that was premised on equality of the peoples. Almost nobody has ever won an election there on a civil society ticket, except possibly on a local level, and even that but rarely. Fears of dominance are therefore not only reasonable, but completely realistic. Certainly in 1990, none of the parties that won at the polls – the SDA, SDS and HDZ – even pretended to be anything other than a national party, concerned primarily with defending the interests of its own nation.

It is precisely because the greatest threat to each group comes from the other groups that there is demand for protection from domination, and this is especially true after a conflict such as the one in Bosnia. Ethnic veto powers such as those of the Dayton Constitution, the original FBH consti-tution, the Constitution of the SFRY, and earlier of Cyprus, are necessary to avoid letting one group seize the mechanisms of the state to set up what the Israeli sociologist Sammy Smooha has called “ethnic democracy” and others have called “constitutional nationalism.” Both phrases mean a state in which the constitutional and legal systems favor one ethno/national/religious group over others, leaving these others not just minori-ties, but minorities defined as hostile to the interests of the state, which is actually a reasonable definition as the state is defined as hostile to them.

In this climate, demanding that political leaders accept the risk of dom-ination is not only to demand that they commit political suicide, but also to risk creating conditions for renewed conflict. Subjugation to the rule of others is usually resisted. The constitution that would be structured by the Butmir amendments would, however, set up the possibility, and thus the likelihood, of exactly that. Nothing in the actions of any of the leading Bosniak parties offers hope of peaceful coexistence with Bosnian Serbs in a B&H in which the Bosniaks hold a dominant position over them. Indeed,

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as Dodik has noted, the changes in voting rules in the FBH that made Croat votes irrelevant for choosing Croat representatives in the central organs, and in any other place in which Bosniaks hold a majority, shows what happens when the protections of the ethnic veto are removed – the minority is rendered politically irrelevant, and emigration then follows by those who are able to leave.19

On the other hand, the charge is often made that the Bosnian state doesn’t function, and thus that reform is necessary. Yet Bosnian politi-cians actually have agreed on many issues, especially economic ones, even as the politicians of one or another national group have also rejected oth-ers. Disagreements and obstruction of legislation are part of the operation of any system of checks and balances. If indeed there is a need to facilitate some kinds of central governance over some issues in Bosnia, it must be done without threatening either the Bosnian Serbs or the ever-declining community of Herzegovinian (and for that matter, Bosnian) Croats.

Dayton did precisely that: it produced stability by recognizing that the populations were largely separated, and that the Serbs and Croats were not willing to risk subjugation by the Muslims, acting in concert with the other group. Stability will continue as long as these conditions are met, but any serious threat to either of them is a threat to the stability of Bos-nia, and even the region.

Modeling the Bosnian Future: Kashmir, Kosovo or Belgium?

Meša Selimović, the greatest Bosnian writer other than Ivo Andrić and more acceptable to Bosniaks than was Andrić (Selimović was on the 5 KM banknote while Andrić’s appearance on the money was blocked by the Bosniaks) wrote that Bosnians “try to hold back time” because their situation is so complicated that “it wouldn’t be good if anything were to change from the way it is now.” Thus, “the only possible solution would be for nothing to have happened . . . so much the worse, because that alone is

19 A recent study argues strongly, and with good data, that the external peacebuild-ing efforts themselves are responsible for keeping tensions high in Bosnia, since domestic political leaders are primarily oriented towards gaining the support of the external power over their putative fellow countrymen, rather than towards reaching accommodation with the latter. Perversely, the more the external power supports one group and pres-sures another, the less likely that members of the second group will see the goals of the external power as either legitimate or acceptable. See Roland Krstic, Ambivalent Peace: External Peacebuilding, Threatened Identity and Reconciliation in Bosnia and Herzegovina (Uppsala: 2007).

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impossible.”20 Rhetoric about restoring Bosnia to what it supposedly was, and of returning people to where they formerly lived if that would mean being once again minorities, reflects that impossible logic.

In order to consider what should be done, it is useful to engage in a thought experiment. There is no evidence that I know of that indicates that the Bosnian Serbs are willing to accept rule from Sarajevo, or any kind of central government that can affect their lives directly. That being so, the question for those who would strengthen the Bosnian state is to consider what kinds of examples exist for imposing a state on a popula-tion that rejects it and is concentrated territorially.

There are some parallel situations elsewhere in the world in which a population has been kept in a state to which the people have never given consent.

One is Kashmir. This is a best-case scenario in some ways, mainly because the Government of India is serious about democracy and has experience in running a multi-everything (religious, language, caste, phys-ical types, economic zones) democracy. Yet the conflict in and over Kash-mir goes on, the Muslim and Hindu populations are almost completely partitioned from each other, and there is no end in sight. And nobody in any ruling party in Bosnia has shown any of the commitment to democ-racy that informs the Indian political elite – there have been no Gandhis or Nehrus, in Bosnia, though there were a number of Jinnahs. And if this is a good scenario, what is a bad one?

One bad one is Kosovo after the Titoist system collapsed and politicians such as Milošević had to run for office, and were increasingly intransigent until the NATO invasion in 1999. If one wants to contemplate the dif-ficulties of imposing a state on a population that rejects it, Kosovo from 1981–1999 is a good example, but we could also look at East Timor, or for that matter Ireland from 1916 to 1923.

Of course, another Kosovo parallel would be after June 1999, when large numbers of Serbs were driven out – that could be a possibility for Bosnia but one likely to destabilize the region.

Yet there is at least one country in Europe composed of two parts, inhabited by people who distinguish themselves from each other and do not agree to be ruled by each other, and that is Belgium. Why not model

20 The quotes are from the superb English translation by Bogdan Rakić and Stephen Dickey of Derviš i smrt, as Death and the Dervish (Northwestern University Press, 1996), pp. 408, 123 and 236, respectively.

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Bosnia after Belgium? But one might envision a thought experiment: imagine trying to impose the Butmir structures on the Belgians. Does any-one seriously believe that the Belgian communities would regard such an action as “democratic,” or “European,” or even as anything other than a violation of their own political, and for that matter human, rights? Does anyone seriously think that the Belgians would accept such an attempt? But then why would we think that the Bosnians would do so?

Let me sum up. The Butmir amendments would have upset the post-Dayton stability of Bosnia by affording mechanisms for the Bosnian Serbs and Herzegovinian Croats to be dominated by the Bosniaks. There is very little chance that the Serbs or Croats would accept this – few reasonable people, actually, would be likely to do so. This does not mean that changes cannot be made to the Bosnian system but the model must be Belgium, not France. And why not? If the Belgian system is good enough for the headquarters city of NATO and the seat of the European Commission, it should be European enough and democratic enough for Bosnia.

International Intervention and the Continuing Reinvention of the Square Wheel

The differences between Butmir 1’s attempt to create a unitary state under Bosniak control and Butmir 2’s manifestation of plus ça change, plus c’est la même chose were said at the time to represent a difference between American efforts to do something radical in Bosnia and European Union ones to ensure that such would not happen. The Bosnians themselves, probably more shrewd observers of the internationals than the interna-tionals are of them, produced a parody of a news story after the US-drafted Butmir 1 plan was resoundingly rejected by the EU representatives, giving Butmir 2. In the parody, the leaders of Bosnia’s three largest ethnic parties “agreed to send a negotiating team to assist the European Union, United States and European Commission to resolve their deep-seated differences over the ‘Butmir process,’ ” “following the rapid deterioration in US-EU-EC relations.” The parody described an (imaginary) fistfight between Ameri-can and EU diplomats, and said that “BiH politicians expressed shock at the incident. ‘We are troubled that the three sides can’t put their differ-ences aside and learn to coexist in peace, like we do in Mostar.’ ” As for the Bosnians themselves, the parody had them saying that “If we are forced to choose between negotiating between ourselves and negotiating with foreigners, we will always choose foreigners. It is clear they must choose

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to negotiate with us . . . it is in no one’s interest that [the Americans and EU personnel] realize that they are reinventing the wheel.”21

As with all good parodies, though, there are elements of truth in this image of the Americans and Europeans fighting their own battles over Bosnia, and being drawn in by the Bosnians to do so. One of the most interesting aspects of the whole Butmir process was the run-up to it, in which political and diplomatic figures in Sarajevo and Washington kept saying that there was a crisis in Bosnia that could lead to violence, while there was no real evidence that violence was likely. The difference with the early 1990s was striking. In 1991–92, everyone in Bosnia knew that war was coming but the politicians and internationals kept saying that it would not occur. In 2009, there was no evidence that war would come, and everyone knew that it would not, yet Bosniak political figures, their lobbyists in Washington, and some American political actors who had “found in the Balkans the equivalent of a ‘lifetime employment opportu-nity,’ ” as Wesley Clark recently described himself and others, kept saying that it would.22 So while Butmir 1 was urged on the basis of a supposed “crisis,” that condition seems to have been invented mainly to provide the impetus for claiming a need for the Butmir process.

The 2009 Butmir thereby process reveals a number of phenomena that need to be faced if stability in the region is not to be threatened by the con-tinuing efforts of internationals to repeatedly reinvent the wheel, asked to do so by Bosnian politicians who have no desire to accomplish anything more than use the internationals to try to overcome their own internal rivals, supported by lobbyists who signed onto one cause or another in the early 1990s and have an interest in keeping the game going.

One of these phenomena is that the basic partitioning of the Bosnian population into Self- and Other-defining national groups remains as salient

21   The parody was circulated widely on Bosnian message services, written in English and purportedly from the Bosnian Serb news agency SRNA. For those familiar with styles of humor in the region (e.g. Top Lista Nadrealista), the parody was of familiar type. Of course, it was also similar to The Onion’s story right after the 2000 Presidential elections in the USA, that “Serbian president Vojislav Koštunica deployed more than 30,000 peace-keeping troops to the U.S. Monday, pledging full support to the troubled North American nation as it struggles to establish democracy.”

22 Wesley Clark, “Vague at the Hague,” Washington Monthly, July/August 2010. Gen. Clark’s description of the Balkans as “obscure geographically, marginal economically, and loaded with unpronounceable names, often missing vowels” complements the SRNA parody of the American and European Butmir negotiators, except that Clark seems not to realize that he is engaging in parody.

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politically as it was at any other critical time since at least 1875. Any politi-cal effort premised on a single Bosnian nation, and for that matter, a single Bosnia electorate, will not succeed in gaining the support of the Serbs and Croats there, and will wind up in the same dustbin as the Lisbon Agee-ment, Vance-Owen 1 & 2, Stoltenberg-Owen, and now Butmir.

Second, if a European model for a state composed of peoples who define themselves as Self- and Other-nations is sought, let it be Belgium or Switzerland. In that case, though, any proposed constitutional arrange-ment should be reality checked by asking whether it would be likely that it would be accepted in either of these two countries.

Finally, careful analysis of the Butmir amendments makes one wonder whether whoever wrote them was actually serious about the task. Can we envision ANY democratic state operating under the structures envisioned by Butmir 1? And can we envision any reasonable leader accepting such arrangements unless s/he were assured in advance of controlling them? Can we envision a structure like Butmir 1, intentionally isolated almost completely from accountability to anybody, but especially from account-ability to voters, having legitimacy with the people in whose name it sup-posedly rules?

These are not, actually, simply rhetorical questions. While Butmir 1 might be the single most bizarre constitutional structure yet proposed for Bosnia (and possibly for any other state since the oddities of the Yugoslav constitution of 1974), no serious effort has yet been made to address the problem of creating a state in Bosnia when two of the three nations com-prising the country reject the authority of the state meant to be imposed upon them. Until this problem is faced directly, the international inter-veners seem likely to remain in the unenviable position of not just con-stantly trying to reinvent the wheel, but of trying constantly to invent a square wheel.

CHAPTER FIFTEEN

MORAL VISION AND IMPAIRED INSIGHT: OR THE IMAGINATION OF OTHER PEOPLES’ COMMUNITIES IN BOSNIA1

A recent article by an anthropologist who studies the post-Yugoslav space contains a reference to the apparently distasteful need for anthropologists, “who, regardless of their own position, see themselves forced to engage with the dominant mode of representation” in the region: nationalism (Jansen 2005: 49, emphasis added). That author’s fieldwork shows that the territo-rialization of national populations is the “lynchpin of a dominant ‘mosaic’ mode of representation of the post-Yugoslav wars” held by the Bosnian peoples themselves. This dominant mode of thinking of the peoples of the region is also shared by the various international actors and agencies that have intervened in the affairs of the place since 1991: nationality is linked to territory, so that a map of Bosnia and Herzegovina (hereafter, Bosnia or B&H unless specifically Herzegovina is meant) shows a “mosaic” of colors indicating the relative dominance of one or another group, and policy involves moving ethnically defined populations in order to change the distribution of colors in the mosaic, but leaving it a mosaic nonetheless. In fact, the web page of the Office of the High Representative, the inter-national civil servants who have been the effective central government to Bosnia since the Dayton Agreement that ended the war in 1995, has links on its webpage that show the color-coded distributions of Bosnia’s populations just before the war (1991), at its close (1995) and a few years later (1998).2 The war aims of at least two of the three national sides in the Bosnian war (Serbs and Croats) were to establish ethnically homogenous territories (the term “ethnic cleansing” being the literal translation of the Serbo-Croatian etničko čiščenje), and these efforts largely succeeded.

What is interesting about the article is that the main point of it is to urge that analysts take a “critical distance” from what the author himself

1   This paper has benefitted from the comments of Milica Bakić-Hayden, Jennifer Cash, Elissa Helms, Bogdan Rakić, Ed Snajdr, Mihnea Vasilescou, and the participants in the 2005 Balkan Junior Scholars Workshop at the University of Illinois, especially Tim Pilbrow; from the comments of eight anonymous reviewers and of Stef Jansen, and of editor Ben Orlove. None of these colleagues bear any responsibility for its contents.

2 http://www.ohr.int/ohr-info/maps/.

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describes as the dominant mode of reasoning in the societies he studies. Of course, anthropologists have almost always kept a critical distance from the beliefs of their informants – Evans-Pritchard, after all, did not share his Azande informants’ views on the efficacy of their witchcraft, and the distinction between folk and analytical models, or operationalized and cognized ones, has long been basic to the anthropological apperception. The task of the anthropologist was to understand how “natives” think, and how their societies work, but unless the anthropologist was also a mis-sionary, challenging informants’ dominant modes of representation was not part of the enterprise. Here, though, the point of the analysis is to show how the natives are misguided in their beliefs, as is anyone who accepts their views; one “engages” with the dominant mode of representa-tion only because one is “forced” to do so.3

Most analyses of ex-Yugoslavia are critical of nationalism, and with good reason: nationalist politics produced the wars that caused perhaps 125,000 casualties (killed and missing)4 and perhaps three million refu-gees/internally displaced persons, from/within Croatia, Bosnia, Serbia and Kosovo. Further, the past two decades have seen the nearly hege-monic development of anti-essentialist theories in anthropology and his-tory (the classics are Anderson 1991, Gellner 1983 and Hobsbawm 1990), and especially of the falsity of images of tightly bounded (both culturally and geographically) cultures (e.g. Gupta and Ferguson 1997). As a mat-ter of principle, the American Anthropological Association is “concerned whenever human difference is made the basis for a denial of basic human rights,” and the AAA’s definition of human rights is broad, reflecting “a commitment to human rights consistent with international principles but not limited by them.”5

3 In making this criticism of one article by Stef Jansen, I do not wish to be seen as criti-cizing other aspects of his work. Jansen is one of the most productive of the generation of field researchers who became interested in the former Yugoslavia after the start of the wars that destroyed the country that those of us of an earlier generation had lived in as well as studied, experiences which shaped our own visions (see Hammel 1993 and 1994), and he has produced a number of excellent ethnographic studies of other aspects of cul-ture and society in the post-Yugoslav space (see, e.g., Jansen 2000, 2001, 2002, 2005a).

4 While most analyses of the Yugoslav wars cite a figure of about 250,000 killed or wounded, it is now clear that that figure is greatly exaggerated. A more accurate figure would be about 105,000 in Bosnia (Tabeau and Bijak 2005), 10,000 in Croatia, and fewer than 10,000 in Kosovo. Of course, 125,000 human casualties is still a very high number.

5 Declaration on Anthropology and Human Rights, Human Rights Committee, American Anthropological Association, adopted by the AAA membership June 1999. www.aaanet.org/stmts/humanrts.htm.

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Also as a matter of principle, the AAA has adopted a statement that deplores “exclusionary practices and racial, ethnic and religious hatred based on differences among groups” and says that “the worldwide sci-entific community has a responsibility to speak out against the use of purported scientific findings used to ‘justify’ racial or ethnic superiority, inferiority or stereotyping and used to ‘justify’ racial, ethnic and religious discrimination.”6 Similarly, the IUAES proposes a “replacement state-ment” for UNESCO, that states that “humanity cannot be classified into discrete geographic categories” and that “racist political doctrines find no foundation in scientific knowledge concerning modern or past human populations.”7

There is no question but that basic human rights were violated in the former Yugoslavia. There is also no question but that the constitu-tional and electoral systems created at the demise of communism in the formerly Yugoslav republics were premised on discrimination against minorities (Hayden 1992) and that the processes of establishing “self-determination” of the various nations of Yugoslavia led directly to ethnic cleansing (Hayden 1996; Jansen 2005), even genocide. Thus the moral case for condemnation of the politics of nationalism, and the politicians who fostered them, are sound.

Yet the politicians who promoted nationalism in the former Yugoslavia and its successor republics did so in order to win free and in the main fair elections,8 which they did. Candidates supporting a civil society of equal citizens ran in every republic, and apart from a very few local-level victo-ries, lost everywhere to those supporting ethno-nationalism: Slovenia for Slovenes, Croatia for Croats, Serbia for Serbs. Bosnia was a special case, in that there was no single majority population that defined itself as a Bosnian nation, thus no party that could successfully mobilize on a plat-form of Bosnia for Bosnians, so instead separate nationalist parties mobi-lized the Muslims, Serbs and Croats against each other (see Hayden 2005, Bougarel 1996a and 1996b; Bugarel [Bougarel] 2004).9 Thus the political

6 American Anthropological Association Statement on the Misuse of “Scientific Find-ings” to Promote Bigotry and Racial and Ethnic Hatred and Discrimination (adopted Octo-ber 1995), www.aaanet.org/stmts/bigotry.htm.

7 IUAES, “Proposed Replacement Statement for the Unesco Documents on Biological Aspects of Race.” http://www.leidenuniv.nl/fsw/iuaes/08-race.htm.

8 The main exception was Serbia in the 1990 elections, at the end of communism, pro-nounced by international monitors as “free but not fair.”

9 Macedonia may also be seen as a special case, in that the government that brought the country to independence (rather reluctantly, since they also tried hardest to preserve

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systems that have been accepted in democratic elections by the various peoples of ex-Yugoslavia, and that they have fought to bring into exis-tence, are premised on the rejection of a community of equal citizens, and instead are systems of constitutionalized discrimination against minori-ties. This unfortunate fact of local political culture presumably accounts for the need felt by many analysts not only to distance themselves from the dominant mode of representation in the region but also to show its inaccuracy.

Yet if analytical distancing is based on moral disapprobation, the result may be distortion, failing to see accurately a social, cultural and politi-cal configuration because it is uncomfortable to do so. This is not a new problem in social science – Max Weber, after all, referred to “inconve-nient facts” as those contrary to established beliefs, and saw it as a moral achievement for a scientist to compel people to become accustomed to them (Weber 1975a: 147–148). For his part, Clifford Geertz (2000 [orig. 1968]: 40–41) once argued for “concerned detachment” on the grounds that “blindness – or illusion – cripples virtue as it cripples people,” assert-ing as well that “Values are indeed values, and facts, alas, indeed facts.”

It is my contention that the understandable, even morally required, urge to condemn ethnic nationalism in the former Yugoslavia has led anthropologists (and others) to foster an illusion about the nature of events there, and that the dominance of this illusion is part of what has led international political actors to insist on efforts to create a Bosnia in their own image rather than accept that the peoples there overwhelm-ingly view their world, and their fate, far differently. The result has been to hinder the reconstruction of the region, and perhaps also to foreclose the possibility of the peoples of Bosnia drawing on their own cultural knowl-edge to re-forge their own interconnections. This is a troubling conclu-sion, because it means that the position that is most morally satisfying in principle produces negative consequences, but I think it morally essential that this problem be confronted, rather than avoided.

It is also necessary to consider the possibility that the well-intentioned and morally grounded anti-nationalist positions of most observers skew their observations in such a way as to hinder the understanding of nation-alist conflict as a social phenomenon. It has recently been suggested that informal constraints on what scientists feel able to study, how they inter-

Yugoslavia) also was the only one to seriously try to accommodate the largest minority – and even so, faced an armed rebellion by that minority in 2004.

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pret data, and how results are disseminated, may have a strong biasing effect, and one that is hard to perceive precisely because it is informal, thus “leaving few markers by which to assess their effects” (Kempner et al. 2005: 854). I believe that the anti-nationalist posture of most research on the Balkans exhibits the effects of such informal restraints, and return to this point in my conclusion.

The Interpretation of the Prescription of Culture

In invoking Geertz and appropriating Benedict Anderson’s famous title, I want to make use of their work but also to criticize their forms of analysis. Part of the analysis in this paper hinges on an insight from Geertz’s famous analysis of the Balinese cockfight, that Balinese accounts of the violence of cockfighting are actually renderings of life as the Balinese “most deeply do not want it” (Geertz 1973: 446). My argument is that the insistence by the international officials who rule Bosnia on its “tradition” of tolerance and supposed manifestations of multiculturalism is a reflection not of more or less verifiable accounts of Bosnia’s past or present, but rather of the fears of the European and American officials who run the place about the ways that they do not wish the world to be, an unreal reading of life as other Europeans most desperately do not want it.10

This interpretive framework is not a matter simply, or even primarily, of academic concern. In so far as the intervention of international actors is based on mistaken assumptions, it is not likely to produce the desired results. Efforts to reconstruct a social structure that failed ignore the fact that the war was “really real” to those who lived through it, who now need help in rebuilding real lives, not symbolic ones. Further, some interven-tions actually block efforts at reconstructing Bosnia if doing so would not

10 A reviewer of this paper suggested that Geertz’s analysis refers to the interpretation of the Balinese themselves, thus an emic perspective, while I analyze the views of “western-ers” of the Balkans, an etic perspective. Neither case is so clear-cut. The Balinese, according to Geertz (1973: 440), actually recognize that the cockfight is a form of play where nobody really gets hurt – it is “ ‘really real’ only to the cocks” (1973: 443). The (West) European view that the conflict in Yugoslavia was “Balkan” and thus not part of Europe was paired with the frequent expressions of outrage that a war was happening “in Europe.” Thus (West) European perspectives on the war were in part emic ones; and the war was “really real” only to the (ex-) Yugoslavs. The covert involvement of states outside of Bosnia in arming, training and otherwise supporting the warring parties there even as they supposedly were supporting UN peacekeeping operations (see Wiebes 2003, Central Intelligence Agency 2002, 2003) makes the parallel, if distasteful, not inapposite.

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match the image of what Bosnia should be. Such interpretations of what Bosnia was supposed to have been, rather than what Bosnians themselves are now willing to accept, manifest what Geertz saw as the danger that symbolic analysis “will lose touch with the hard surfaces of life – with the political, economic, stratificatory realities” (Geertz 1973b: 30).

This article is grounded on data about such realities, including cen-sus data, public opinion polls, voting patterns and the configurations of the contending military forces, rather than primarily on more traditional forms of ethnography. Doing so runs contrary to a prominent view in anthropology to regard census data as relatively unreliable about iden-tity, following a seminal 1970 paper by Bernard Cohn (1987). Cohn argued that censuses and other forms of categorizing people are misleading in their objectification and lack of capacity to deal with fluidity and multiple forms of identity. Since then, anthropologists and historians have argued that census categories are or have been mechanisms for controlling native populations by (usually) colonial regimes, and even that the categories are not just objectifications of more fluid native concepts, but even colo-nial inventions (see, e.g., Dirks 2001, Jenkins 2003, Jansen 2005, Kertzer & Arel 2002, Gupta & Fergusun 1997, Anderson 1983: 164–178). Specifically in regard to the Balkans, some prominent studies have focused on the misleading nature of census records in areas in which the political context of the numeration makes some potential self-identifications dangerous (Karakasidou 1997, Friedman 1994, Campbell 1999).

Such challenges to the validity of census categories, however, have them-selves been forcefully criticized, on the grounds that census categories in divided societies reflect divisions that preceded the putatively objectify-ing and hegemonic states (see, e.g., Peabody 2001, Guha 2003). Further, to focus on what the state is presumed to be doing ignores the expressions of choice that people themselves make by, for example, voting, or forming into the opposing groups in a civil war. In deeply divided societies, “the election is a census, and the census is an election” (Horowitz 1985: 196; cf. 326–330). In the former Yugoslavia, and especially in Bosnia, the voting patterns in every relatively free and fair election in the twentieth century mirrored the results of every census ever taken there: most Muslims voted for one Muslim party, most Serbs for a Serb party, and most Croats for a Croatian party, even when non-nationalist parties were available options (Arnautović 1996), and even when the state wanted to unify the popula-tion, not fragment it. Political and paramilitary mobilization from the end of Ottoman rule through the establishment of the first Yugoslavia in 1919 was on ethno-national grounds (see Donia 2006), as were Bosnian poli-

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tics in the first Yugoslav state (Banac 1983). In Bosnia, the major military forces in World War II other than Tito’s Partisans were based on ethno-nationalism (see Dulić 2005). Thus, while it may be that categories do not reflect the presumed multiplicity and fluidity of identities, the peoples of Bosnia seem to have been and continue to be modernists – to declare themselves, vote, and fight, as if the categories were real. And they may well talk differently from the ways that they act. Robert Donia, a very strong supporter of the concept of Bosnian unity, concludes his “biogra-phy” of Sarajevo (2006: 352–353) by noting that most Sarajevans “reject nationalist exclusivity in principle, yet they have repeatedly opted to put nationalist political leaders in office.” In such circumstances, data on what people do is critical for trying to make sense of what they say.

The dominant European and American images of Bosnia are susceptible to analysis using those prominent understandings of nationalism captured in the phrases “the invention of tradition” (Hobsbawm & Ranger 1979), and “imagined communities” (Anderson 1983). These approaches are usu-ally invoked to counter nationalist imagery, and are attractive philosophi-cally because they disqualify claims to legitimacy based on assertions of the historic rights of racial, linguistic or religious groups, rather than the equality of citizens living together within a territory, and they also indicate that identity is freely malleable. Yet they are also applicable to the imagi-nations of Bosnia that have been promulgated by those representing the “international community” in their various interventions there, and to the inventions of a “Bosnian tradition” of tolerance that many Bosnians them-selves do not acknowledge.

The international imagining of a single Bosnian community despite the efforts of large, non-random segments of the population to reject it actually delegitimizes the beliefs of many of “the natives” themselves. For anthropologists who wish to counter nationalism, the epistemological position seems the inversion of Boasian anthropology: the Boasians were interested in “getting it right,” which presumed that the natives knew their own culture – indeed, that they were the only ones who really knew it. Attempts to oppose the natives’ own definitions of their communities’ tradition means that whatever the natives may think is in fact wrong – it is now the anthropologist who knows the truth about the natives, and their own beliefs may be not only wrong but dangerously so.

In a case like that of Bosnia, of course, one may well argue: so what? If local culture has produced such violence, then it needs to be reformulated. The problem is by whom, and for what end? And here, the concept of the imagined community becomes critical – whose imagination counts? In

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Bosnia, I argue, well-meaning outsiders have tried to impose their own view of community on peoples who reject it. Indeed, the whole enterprise of the international community in post-war Bosnia may be seen as an attempt to create a single society in a setting in which a large portion of the natives successfully fought a war to prevent just that result. With this in mind, that the international representatives support some Bosnians does not alter the fact that they oppose others, whose objection to being included in a unitary Bosnia is based on their rejection of co-nationality with those supported by the internationals.

This article is thus an exercise in the interpretation of a prescription of culture. In doing so, I want to set up an ethical problem that Geertz him-self described in 1968 but which he seems to have avoided with his shift to interpretive anthropology: “the imbalance between the power to uncover problems and the power to resolve them” (Geertz 2000: 37). I believe that the ethical problem is a real one, and address it in part by reference to data on the longstanding and continuing division of the Bosnian population into separate peoples mutually recognized as Others, and also with refer-ence to texts by Bosnian novelists. I thus pay homage to Geertz’s model of “culture as text” even while demanding that interpretive anthropology also confront the “hard surfaces of life.” The results are not comforting, frankly, to those who would think that such long-standing divisions may be overcome by imagining a single community and inventing traditions anew; but it may be that overcoming such illusions is necessary to permit outsiders to help peoples like those in Bosnia to reconstruct social and political systems that they are willing to live under, even if those are not the ones that outsiders think they should have.

Celebrating Misplaced Symbolism: The Rebuilding of the Mostar Bridge

The opening of the rebuilt Old Bridge in Mostar, Herzegovina in July 2004 was celebrated internationally as a symbol of the rebuilding of the con-nections between Bosnia’s people, who had been divided by the 1991–95 war (see Makaš 2005). The bridge had been built by the Ottomans in 1566, and stood until the forces of the Herzegovinian Croats destroyed it with tank cannon fire in 1993, as they partitioned the city of Mostar into Croa-tian and Muslim sectors; the bridge had been damaged a year earlier by Serb shellfire in the part of the war that led to the departure or expulsion of most Serbs from the city. International donors paid for its reconstruc-tion: the World Bank, the European Development Bank, UNESCO, the governments of Italy, Holland, Croatia and Turkey, and private donors.

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“The bridge” has been a key symbol of Bosnia since the international success of Ivo Andrić’s historical novel The Bridge on the Drina (Andrić 1959), which helped earn Andrić the Nobel prize for literature in 1961. The metaphor stands in part for Bosnia’s (and Yugoslavia’s) medial position between East and West; and in part for the links between the several com-munities that have made up Bosnia since the Ottoman conquests in the 15th Century: Muslims, Serbs, Croats and Jews.11

During the war, “the bridge” became almost the hegemonic symbol in depictions of Bosnia: the cover art of the Donia and Fine’s popular his-tory (1994) is a picture of the bridge in Mostar with the notation “now destroyed,” on Susan Woodward’s Balkan Tragedy (1995) is a picture of the same bridge damaged by shellfire, while a book by Michael Sells is enti-tled “the bridge betrayed,” and the cover of another (Campbell 1998) also depicts the Mostar bridge as shown on a banknote issued by the Muslim-controlled Bosnian government during the war. The 1994 Penguin edition of Rebecca West’s 1941 classic, Black Lamb, Grey Falcon, has the Mostar bridge on the cover, even though her visit to Mostar is recounted in only 5 of the book’s 1000 pages. A stylized version of the Mostar bridge is even on the cover of the Bjelić and Savić’s (2002) collection that critiques ste-reotypes of the Balkans. To rebuild it was thus meant to show how the connections between Bosnia’s people were being rebuilt, too.

In the European Union in 2004, the metaphor of the bridge also had much wider meaning. Banknotes in the Euro currency, first issued in 2002, feature bridges from different periods of Europe’s architectural history on the reverse of each, as symbols of the connections between the peoples of Europe.12 The conjunction of this symbolism of bridges connecting the peoples of Europe, and the hegemonic symbol of the bridge as connecting the peoples of Bosnia, thus became the perfect hyper-symbol of making the country part of modern Europe instead of a “return to an earlier model of atavistic nationalism just when the rest of Europe had finally discovered the value of multi-ethnicity and diversity” (Ashdown 2004). The European funding of the bridge thus also symbolized “the priceless gift that Europe

11   At some times and places in the region, other terms were used to refer to the Serbs and Croats: respectively, Orthodox Christians (pravoslavci) and Catholics (katolici); some-times Christians (Hristjani) and Latins (Latini) (see Donia 2006: 52), and perhaps most interestingly, Christians (rišćani) and “rebels” (bunjevce) (Pupovac 1999: 181). Yet whatever the naming, the distinction seems to have remained constant.

12 http://europa.eu.int/comm/economy_finance/euro/notes_and_coins/notes_main_en.htm.

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can give” to Bosnia, “the key revelation of modern Europe . . . to see diver-sity not as a problem, but as an advantage” (Ashdown 2004).13

The Islamic heritage of Bosnia embodied in the bridge was also cel-ebrated in Mostar, but as a symbol of what Bosnia can offer Europe rather than the reverse: a moderate European Muslim population that can link the wider Islamic world to Europe. High Representative Ashdown saw this European Muslim population as living disproof of Samuel Hunting-ton’s “clash of civilizations” model of geopolitical dynamics. Thus the “new Old Bridge” in Mostar was said to symbolize Europe’s inclusion of Islam as well as Bosnia’s attainment of the European values of toler-ance and multi- ethnicity. Going further, and neatly inverting Orientalist imagery, the Bosniak (Muslim) President of the Presidency of Bosnia and Herzegovina,14 Sulejman Tihić, stated at the opening ceremonies that “in Mostar and in Bosnia and Herzegovina, Europe is passing a historical and civilizational test.”15

Symbols, however, may not be accurate signifiers of reality. The com-ments in Mostar of the Foreign Minister of Serbia and Montenegro, him-self a novelist originally from Herzegovina16 and thus skilled in literary

13 Paddy Ashdown was almost certainly unaware of the close similarity between his speech and that of (of all people) Slobodan Milošević, on (of all occasions) the (in)famous 600th anniversary celebration of the battle of Kosovo, in 1989:

Serbia has never had only Serbs living in it. Today, more than in the past, members of other peoples and nationalities also live in it. This is not a disadvantage for Serbia. I am truly convinced that it is its advantage. The national composition of almost all countries in the world today, particularly developed ones, has also been changing in this direction. Citizens of different nationalities, religions and races have been living together more and more frequently and more and more successfully.

Milošević did add what he saw as a necessary element for such tolerance, one that Ash-down ignored: socialism. Of course, in other parts of the speech Milošević added argu-ments that were almost universally seen as both nationalistic and threatening to the other peoples in what was then Yugoslavia; see L. Sells 2002: 88–89.

14 “Bosniaks” (Bošnjaci) is, since 1994, the official term used for Bosnian Muslims, previ-ously officially called Muslims (Muslimani). It should be noted that in ordinary speech in Bosno-Serbo-Croatian, “Bosnian” (Bosanac) refers to anyone from Bosnia, but “Bosniak” (Bošnjak) refers exclusively to Muslims. B&H has a collective Presidency, composed of one Bosniak, one Serb, one Croat, who rotate the Presidency of the Presidency on a pre-determined schedule and who are supposed to reach decisions by consensus; see Hayden 1999).

15 http://www.predsjednistvobih.ba/saop/default.aspx?cid=4280&lang=bs.16 And a writer of some controversy. Foreign Minister Vuk Drašković first attained

prominence in the mid-1980s with a novel questioning the hypocrisy of socialist morality, but then turned to themes interpreted by most as embodiments of Serbian nationalism, and the Serbian Renewal Party that he founded was seen in 1990–91, with good reason, as an extreme nationalist alternative to Milošević’s socialists. Nonetheless, Drašković seemed to have been sobered, and moderated in his nationalism, by the war in Bosnia.

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nuance and local knowledge, were more measured: that while the Old Bridge had for centuries connected people of all religions, “This is not the same bridge, but only its image [vizura], because the Old Bridge can never be renewed and restored to what it was” (Danas 24–25 July 2004: 3). Parallelisms in the phrasing of the comment in its Serbian original imply that just as the original Old Bridge cannot actually be restored, neither can the set of interethnic social relations it symbolized, even though they were “the most beautiful in the world.”

Even the ceremonies for dedicating the new bridge did not bring the citizens of Mostar together, because they were not invited: “citizens of the city were forbidden to come within a few blocks of the bridge the night of the opening and unable to see the ceremony live, though the speeches repeated that it was their night to be proud and celebrated ‘their’ progress” (Makaš 2005: 66). None of the speakers was a citizen of Mostar. While the Croat member of the collective Presidency was actually from Mostar, he did not appear, and most of the city’s Croats are reported to have ignored the whole reconstruction process (Makaš 2005: 65–66).

Further, the Mostar bridge, on the Neretva River, is not, in fact, the one at the center of Ivo Andrić’s novel, which is the 16th century Otto-man bridge on the Drina River, in Višegrad.17 Certainly the bridge on the Neretva in Mostar (both the original Old Bridge and the rebuilt reproduc-tion of it) is a more striking work of architecture than the bridge on the Drina in Višegrad. Yet if the bridge is the irresistible symbol of Bosnia, the fate of the bridge on the Drina that was the focus of Ivo Andrić’s novel may be of greater symbolic interest. And, ironically and ominously, just as the international community was celebrating the construction of a fac-simile of the Old Bridge in Mostar that they had funded, the local authori-ties in Višegrad closed the Ottoman bridge there to all traffic, because 9 of the 11 arches had become severely degraded. While renovations had been planned for 1992, they were not carried out because of the war. In 2004, the local authorities did not have the funds to repair the bridge, and

17 This displacement of the concrete manifestation of the metaphor may match the displacement of Ivo Andrić himself from Bosnia. Andrić lived the last decades of his life in Belgrade and is generally accepted as a Serbian writer. He is memorialized in central Belgrade; indeed, the office of the President of Serbia is on a plaza named after Andrić. Despite the ubiquity of the bridge metaphor, Andrić is controversial among Bosniaks for writings that some see as disparaging Muslims (see Maglajlić 2000). Thus while the writer Meša Selimović, discussed below, appears on the Bosnian currency, Nobel laureate Andrić does not. Replacing the Višegrad bridge with that in Mostar thus preserves the metaphor while concealing the writer.

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appeals to various levels of Bosnian governments, and to international authorities, were not successful (Bjelopoljac 2004). Thus, at the same time that the international community devoted resources to building a copy of the Mostar bridge in order to celebrate an image of what Bosnia should be, the structural supports of the bridge that first symbolized the connec-tions between Bosnia’s peoples eroded due to lack of financial support from the same international community.18

Indeed, as a bridge linking Bosnia’s communities, the Mostar bridge is not actually physically functional. Mostar remains almost completely divided between an overwhelmingly Croat west and overwhelmingly Bos-niak east, the 19% of the 1991 population who were Serbs being, mainly, gone. The new Old Bridge connects the east bank of the Neretva with the only part of the west bank that Muslims controlled throughout the war, and still control, and while it is beautiful it is so narrow as to be only a footbridge, not suitable for traffic. Some of the same newspaper accounts that reported on the celebrations in Mostar also noted that social divi-sions remain almost complete there, with Croat and Muslim children going to different schools from kindergarten through separate universi-ties, everyone keeping to their respective sides of the river, and even dif-ferent mobile phone codes in the two parts of Mostar.19 In 2005, it was reported that there was finally agreement on a monument to “universal justice” – as embodied in the late movie actor/“kung fu legend” Bruce Lee, rather than any Bosnian historical or cultural figure.20

It is not only Mostar that remains divided. Signs of social separation are obvious throughout the country. On a July 2004 drive from the eastern bor-der with Serbia (at Zvornik) to Sarajevo, and from Sarajevo to the north-

18   The Višegrad bridge, however, was also the site of mass murders of Muslims by Serbs in 1992, and during World War II. The town was 63% Muslim and 33% Serb in the 1991 census, but was one of the first places taken by Serb forces when the war began in 1992, and was quickly “ethnically cleansed” of the Muslim population.

19   “Mostar bridge opens with splash,” http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/ 3919047.stm (7 July 2004). Cell phone and country codes may provide a new indicator of spatial division. Thus roaming charges from the cell phone networks in Serbia are less in the Serbian part of Bosnia than in the Croat and Muslim parts. On the other hand, since Kosovo Albanians reject inclusion in Serbia but do not have their own country code, in 2001 they had made arrangements so that cell phone calls made from Kosovo were being billed as made from Monaco rather than Serbia.

20 “Bruce Lee a Symbol of Unity in Divided Bosnian Town,” http://www.abc.net.au/news/newsitems/200509/s1458744.htm; similar news items were on CNN.com (12 Sept 2005) and www.npr.com (13 Sept 2005).

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ern border with Croatia (at Kostajnica, via Doboj and Banja Luka), traffic signs observed in the RS were exclusively in the Cyrillic script, advertising was mainly for Serbian firms, and there were many new Serbian Orthodox Churches, while in the Federation road signs were exclusively in the Latin script, advertising was for international companies and Bosnian ones, and there were many new mosques, except in the Croat enclave (in an oth-erwise Bosniak region) of Žepče in central Bosnia, where the advertise-ments were for Croatian beer and products, there was a restaurant named “Dubrovnik,” and a new Roman Catholic church. The political environ-ment of Bosnia is still such that it is ruled more by the International High Representative than by the people(s) of Bosnia themselves (see Knaus and Martin 2003, Hayden 2002a, 2005).

The symbolism of both bridges seems to connect the most tangible of objects – worked stone – to the least tangible of concepts: social structure; but they are actually incommensurable. The new Old Bridge in Mostar is said to be a manifestation in stone of the reconnection of Bosnia’s people even though they are not much reconnected; while the deteriorated old Bridge on the Drina actually is a crumbling of the physical structures that once facilitated the connections of Bosnia’s people. They are therefore not really equivalent, because Andrić’s bridge was a matter of physical infra-structure for travel and its accompanying communication that could also be used for symbolic purposes, while the new Old Bridge in Mostar is not important as physical infrastructure but only as symbol.

The lack of international attention to the decay of Bosnia’s physi-cal infrastructure as manifested by the Bridge on the Drina, in favor of rebuilding the purely symbolic Mostar bridge, may itself be analyzed sym-bolically, of course, but to do so may be discouraging. Political and social actors representing the international community have not facilitated maintaining the links that many Bosnians may still have, and reinforcing them, but instead celebrate a symbol of their view of the way the way that Bosnia should have been. This symbolic lesson may be seen in other imbalances between the international community’s willingness to pay for symbolism but not for infrastructure. To give one striking example, the 2004–05 budget of the International Criminal Tribunal for Yugoslavia is $272 million, and $1 billion have been spent on that court since 1993; but the total expenditure of UNDP on hospitals and clinics in Bosnia since 1996 is only about $30 million. This means that the Tribunal now spends, every year, about four times the total spent by UNDP on hospitals since the war ended. Perhaps Bosnians need the symbolism of “justice” more than they

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need medical care. Or perhaps not. I have never seen this question asked, much less addressed; but the Tribunal is widely unpopular throughout the Balkans.21

Inventing Other Peoples’ Traditions

The former Yugoslavia started to become “the former Yugoslavia” when elections held in its constituent parts in 1990, after communism, produced victories by politicians whose platforms were based on constitutional nationalism (Hayden 1992), the assertion that the state (a territory with a government) had to belong to a single sovereign nation (an ethnic group, in American terms: Serbs, Croats, Slovenes, etc.). Adopting this classic cen-tral European nation-state configuration in a country as heterogeneous as was the former Yugoslavia had to risk producing a catastrophic war, as in fact happened. The main effects of the post-Yugoslav wars have been to transform ethnically heterogeneous regions in homogenous ones: driving most Serbs from Croatia,22 and dividing Bosnia into largely homogenous territories (Hayden 1996), while Serb forces drove Albanians out of Kosovo in 1999 only to see Albanian forces expel most of the Serbs when NATO forced the withdrawal of the Serbian army a few months later. Clearly, many normal, ordinary people were willing to kill, and some even to die, in order to create ethnocratic nation-states out of the heterogenoeus ter-ritory of the former Yugoslavia23 and they were also willing to vote for

21   A February 2002 public opinion poll throughout the Balkans found that the ICTY had the trust of 8% of people in Serbia, 21% of people in Croatia, and 22% of people in Macedonia. In Bosnia the situation was more mixed: the ICTY was trusted by 4% in the Serbian part but 51% in the Croat – Muslim region, the breakdown between Croats and Muslims not being specified. http://archive.idea.int/press/documents/SEE_Survey_Press_Release_English.pdf.

22 This was the end result, following Croatian military offensives to take control of areas that had been seized by Serb forces in 1991 and held by them until then, the so-called “Republika Srpska Krajina” (RSK). The RSK had expelled non-Serbs from its territories (see Jansen 2002), so the general pattern mentioned held then, too.

23 And, of course, other normal people were not willing to kill or die for Bosnia, Serbia or Croatia. Hundreds of thousands of people left the former Yugoslavia in order to avoid the wars, and tales of the extent to which young men in Serbia and Croatia would go to avoid conscription were legion. Even at the start of the wars, in 1991, the Defense Minis-ter commanding the by-then Serbianized Yugoslav Peoples Army complained about the massive avoidance of conscription (Kadijević 1993). After the war, there has been resent-ment by those who stayed, especially war veterans, of the privileged economic status of those who returned (see World Bank 2002 [a report authored by Xavier Bougarel], Sorabji 2006).

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leaders who brought about these processes. In fact, every elected political leader who was involved in setting it in motion became more popular thereby (all of them won re-election by greater margins than they had won in 1990), and most became very rich, at least by Balkan standards, as they drove large numbers of their own populations into poverty, and not infrequently into death, injury and exile. Yet despite the wars, or per-haps because of them, few former Yugoslavs express much real longing for forming a common state once again. A public opinion survey in Croa-tia on the tenth anniversary of that republic’s independence showed that 55.3% of those surveyed thought that the war was worth it, even though 51% of the respondents believed that they live less well than they did ten years earlier (the breakdown between this latter 51% and the 23% who thought that the war was not worth it is not specified).24

Bosnia was the riskiest terrain for ethno-national politics because there was no single majority group. In 1991, Muslims formed a plurality (43.7%), with 31.3% Serbs and 17.3% Croats; the rest were “Yugoslavs and others.” In many places in rural Bosnia, these communities lived intermixed but not intermingled; the Ottoman period institution of komšiluk (from Turk-ish) structured interaction between these peoples as members of groups, based on respect and strict reciprocity, but also on separation: intermar-riage was in principle prohibited, and in practice almost unknown in rural Bosnia (Bougarel 2004: 118–126). In the 1960s, a study in rural Bosnia showed that

members of each larger ethnic group live in semi-isolated circumstances with relations with members of other groups more or less limited to certain economic activities. . . . The integration achieved between ethnic units of society is restricted to a mere functional articulation between parts. . . . Thus in spite of habitual contact with members of other groups, ingroup feelings and ethnocentrism remain high. (Lockwood 1975: 210).

In the late 1980s in central Bosnia, intermarriage was still almost unheard of (see Bringa 1995: 79–80). Thus the social boundaries between members of these groups, even when living as neighbors, were strong.

In the 1990 elections, given the option to vote for a party promising a civil society of equal citizens, fewer than 10% of the voters did so. Instead, the election resembled an ethnic census, with Muslims voting overwhelm-ingly for a single Muslim party, Serbs for a single Serb party, and Croats

24 Results of survey conducted by the Zagreb newspaper Večernji list as reported by the internet service of Belgrade independent radio B92, January 14, 2002).

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for a single Croatian party, with each party committed to advancing the welfare of its own ethnic group, as opposed (literally) to the other groups. This nationalist voting was not simply an artifact of post-communism: in Bosnia, every relatively free and fair election since 1910 gave the same results (Arnautović 1996). Indeed, since the conquest of Bosnia by the Ottomans in the 15th century, the country was never run by an indepen-dent government composed of Bosnians, but rather was always part of an empire (Ottoman or Austro-Hungarian) or larger state (first Yugoslavia, 1919–41; so-called Independent State of Croatia, 1941–45; second Yugosla-via, 1943–92).

Bosnia was also risky because since the late 19th century, mass violence between the three major groups resulted every time that the larger pol-ity encompassing Bosnia broke down: 1875–78 (withdrawal of the Otto-man Empire [Lampe 1996: 65–66]), 1914–18 (collapse of Austro-Hungarian empire [Lampe 1996: 106–107]), 1941–45 (collapse of first Yugoslavia [M. Djilas 1980, Bogosavljević 2000]). In 1990–91, the collapse of the second Yugoslavia provided the conditions in which competition between the three major groups was most likely to break out. A late 1991 survey of university students in Bosnia, when the war in Croatia was already in progress and it was clear that the Yugoslav federation would not survive, showed that 78.14% of Serbs and 71.32% of Croats said that Bosnia could not survive as an independent state outside of Yugoslavia, while 61.33% of Muslims said that it could (Goati 1992: 113).

Bosnia’s Serbs and Croats may have been willing to support the breakup of Bosnia because they could then join their “motherlands,” Serbia and Croatia. The Muslims had no such reserve option, and thus had the most to lose. It was also clear to all that the Muslims had the worst position for armed resistance, because Serb and Croatian forces could be supported from those two republics. Thus it was vital to the Muslims to try to avoid partition. Since they could not look for support from the other groups within Bosnia or from Serbia or Croatia, they sought it from the interna-tional community. And to do this, they conveyed an image of what one of them called “Bosnia the good” (Mahmutćehajić 2000), a place where there has always been “unity in diversity,” even if disrupted at times by conflict, and where there is a distinct Bosnian culture shared by all. This idea was supported by a few non-Muslim Bosnians (see, e.g., Lovrenović 2001) but was especially reinforced by some foreign intellectuals, who had studied Bosnia’s Muslims and were very much aware of the dangers involved in partitioning Bosnia. The basic thesis was stated succinctly in one of the

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best-known of these works, Bosnia: A Tradition Betrayed by American his-torians Robert Donia and John Fine (1994):

Bosnia has been a coherent entity for centuries; and despite Serb statements to the contrary, there is nothing artificial about Bosnia. It is only the fanati-cism of nationalists that insists that states must be based on ethnicity and be nation-states and that pluralism is artificial and unworkable. And these neighbors, and their local surrogates, have been doing their best to make facts fit their theory through demagoguery, hate-mongering, and violence. But Bosnia – for centuries a pluralistic society – has shown over the centu-ries that pluralism can successfully exist even in a Balkan context. (Donia and Fine 1994: 8–9).

Taking a similar position, Islamicist Michael Sells distinguished between Serbian and Croatian “religious nationalists” and “Bosnians,” defined by him as those who “consider themselves Bosnians, that is, who remain loyal to a Bosnian state built on the principles of civil society and religious pluralism” (M. Sells 1996: xiv).

At a time when multiculturalism and diversity are seen as being not only positive in themselves but also the natural condition of healthy soci-eties (and recall the curiously similar phrasings of Paddy Ashdown in Mostar in 2004 and Slobodan Milošević in Kosovo in 1989 as evidence of the widespread political correctness of this view), Bosnia became a cause, as embodied in U.S. journalist David Rieff ’s accusations of “the West’s” failure there:

as long as there seemed to be a chance that the Bosnian cause might not be extinguished, it . . . seemed important to illustrate why I and many other foreign writers and photographers and television journalists kept choos-ing . . . to spend time on the Bosnian side. We did not just think that what was going on was a tragedy – all wars are tragic – but that the values that the Republic of Bosnia – Herzegovina embodied exemplified were worth preserving. These ideals, of a society committed to multiculturalism (in the real and earned sense rather than the American and prescriptive sense of that much overused term) and tolerance, and of an understanding of national iden-tity as deriving from shared citizenship rather than ethnic identity, were pre-cisely the ones that we in the West so assiduously proclaim . . . Bosnia was and always will be a just cause (Rieff 1995: 10; emphasis added)

Let me state that I agree with the sentiments; obviously a civil society of equal citizens would have been the best solution for Bosnians – as it would have also been for Yugoslavs. But the problem was that about half of the population of Bosnia, at the least, did not fit Sells’ description or Rieff ’s prescription then and do not now, since they reject the Bosnian

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civil society that they mandate. Nor is this rejection simply a matter of fanaticism – unless half the population may be seen as fanatics; and the previous electoral partitions of Bosnia, and violence whenever the larger imperial powers ruling Bosnia have withdrawn, were also some-how unfortunate coincidences that all just happened to develop along similar trajectories, rather than manifestations of structural tensions in Bosnia’s pluralisms.

The image of Bosnia as a place of tolerant diversity was certainly con-gruent with the dominant self-image of the European Union. “United in Diversity” was the official slogan of the 9 May 2004 Europe Day.25 This ideology can be traced in official EU statements to the need to prevent the recurrence of warfare in Europe. The main EU website, Europa, states that “The historical roots of the European Union lie in the Second World War. The idea of European integration was conceived to prevent such killing and destruction from ever happening again.”26 This inspiration is certainly a moral cause, and the advantages of pluralism are so accepted in what used to be called progressive thought as to be a staple of leftist rhetoric (cf. Milošević in Kosovo) as well as social liberalism (Paddy Ashdown).

Yet pluralism is only part of the history of Bosnia that Bosnians them-selves remember. A very different image of Bosnia is available from Meša Selimović, perhaps the finest novelist in post-World War II Bosnia and a figure who should embody the multiple identities of Bosnia since, though of Muslim family background, he claimed to be a writer of Serbian litera-ture, and thus was one of the very few historical figures acceptable to both Serbs and Bosniaks for depiction on the Bosnian currency in use since 1998 (Selimović appears on the 5 Mark note). In his best known novel, set in Ottoman Bosnia but written during the period of compulsory socialist “brotherhood and unity” in the early 1960s, Selimović (1996 [orig. 1966]: 408) embodied Bosnia in “the cripple Jemail,” who

when seated astonished everyone with his beauty and strength. . . . But as soon as he stood up all of his beauty disappeared. . . . It was he who had crippled himself. While drunk he had stabbed himself in the thighs with a sharp knife until he severed all of his tendons and muscles, and even now when he drank he would drive the knife into the withered stumps of his legs. Jemail is the true image of Bosnia. Strength on mutilated legs. His own executioner.

25 See, e.g., http://europa.eu.int/comm/publications/posters/images/aff2004_en.jpg.26 “The European Union at a Glance.” http://europa.eu.int/abc/index_en.htm.

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The same Ivo Andrić who established the bridge metaphor for Bosnia had also written, famously, that

Bosnia is a country of hatred. . . . You Bosnians have, for the most part, got used to keeping all the strength of your hatred for that which is closest to you . . . you love your homeland, you passionately love it, but in three or four different ways which are mutually exclusive, often come to blows, and hate each other to death (Andrić 1992: 117).

The point is not, of course, that the peoples of Bosnia are inherently damned to hate each other to death and be their own executioners, but rather that the image of Bosnian self-destruction was at least as salient, and current, as that of “Bosnia the good.” The period 1941–45 had seen terrible inter-ethnic conflict, with Serbs suffering the greatest numbers and percentages of victims (Dulić 2005; Bogosavljević 2000: 155) at the hands of the Croatian and Muslim forces of the Independent State of Cro-atia, which included Bosnia, but with Muslims having been massacred by Serb forces in eastern Bosnia (Dulić 2005, Dedijer & Miletić 1990). This slaughter was known to all, in part because well orchestrated campaigns to recall the massacres were used to incite nationalist antagonisms in Ser-bia and Croatia (Hayden 1994, Denich 1994). But the memories were real for too many people – after all, between 896,000 and 1,210,000 people had been killed in Yugoslavia in the period 1941–45 (Bogosavljević 2000: 157) and 300,000 in Bosnia, very much within living memory. As several people who had lost family members during the National Freedom Struggle (as World War II within Yugoslavia was known during the socialist period) told me in 1993 and 1994, they were able to suppress the memories of who killed whom as long as the nationalistic politics that had brought about the slaughter were forbidden, but once the nationalists returned, they could no longer repress what they had never forgotten. And indeed, memories of past atrocities drove some of the worst actions of 1992–95, including the massacre of thousands of Muslim men and boys at Srebren-ica in July 1995 (Sudetic 1998; Duizjings 2002).

The paradigm of the invention of the tradition was developed to deal with the instrumentalist creation of symbolic systems aimed at unify-ing nations in order to construct states, by the political figures who wish to bring about the unification. The creation of the tradition of “Bosnia the good” is interesting because that image seems to have succeeded much more outside of Bosnia than it did within the country – after all, the war really was driven by the rejection of a Bosnian state by the Bos-nian Serbs and Herzegovinian Croats, since the Bosnian Serb Army was

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composed almost entirely of Bosnian Serbs and the Croatian Defense Council (HVO) almost entirely of Croats from B&H. Even within Bosnia, then, the promulgation of “Bosnia the good” was an attempt at the inven-tion of a tradition for those Bosnians who insisted on seeing themselves as other than Bosnian – as Serbs and Croats.

This is not to adopt the “ancient hatreds” position, the assertion that these peoples have always hated each other. Were that true, they would not have been living so intermingled that “ethnic cleansing” was necessary to forcibly homogenize territories in 1941 or 1991. Yet coexistence did not mean that the peoples of Bosnia considered themselves to be one nation, a collective body with common interests. Instead, these peoples were con-stantly in competition with each other, competition that was controlled by various larger polities that contained Bosnia but that became violent whenever the larger political structure collapsed (see Hayden 2002). This was as true in 1992 as it was in 1878, 1918 and 1941, and if it is still true, the prospects for forming a democratic Bosnian state are very small, because a state that does not have the consent of about half of those supposedly to be governed by it can hardly be considered democratic.

Imagining Other Peoples’ Communities

This conclusion is deeply unsatisfying, to say the least. “Diversity” or het-erogeneity of populations is by now generally seen in anthropology as both the natural condition of peoples and as a positive good to be pro-moted (Clifford 1988 is something of a locus classicus on the point, but string citations would extend for pages). There also seems to be a com-mon belief similar, perhaps, to the premise of psychotherapy, that bring-ing a mental pathology (nationalism) to consciousness cures it; or perhaps that since communities are “imagined” (Anderson 1991) they can also be “unimagined.” Thus one author has invoked Derrida and Foucault to pro-pose that since identity is constructed, ethnic or national identities can be challenged through deconstruction, which is why “deconstructive thought is a necessary prerequisite for historical and political progress” (Camp-bell 1998: 14); this analysis claims to engage in “the problematization of the problematizations that reduce Bosnia to a problem, thereby bringing to the fore the necessary concern with ethics, politics, and responsibil-ity contained by more traditional accounts” (Campbell 1998: xi). Sounds great, except that it simply ignores the beliefs and actions of the quite

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large portion of the peoples of Bosnia themselves who reject pluralism and were willing to go to war to escape it.

Such disregard for the ways in which local parties do think and act, in favor of the ways that they should (sometimes phrased as “must”) think and act, reverses the agency of the imagination of community. Benedict Anderson’s famous phrase (1991: 6) puts the act of imagination into the minds of the people who consider themselves fellow-members: “in the minds of each lives the image of their communion.” It is interesting that the imagination of Anderson’s imagery is passive: “lives in the minds.” The source he cites on the point, Hugh Seton-Watson (1947: 5), sees what Anderson calls this imagination as an active condition: “a nation exists when a significant number of people in a community consider themselves to form a nation, or behave as if they formed one.” In Bosnia, it has been quite clear since 1990 that “the image of communion” with other nations has not lived in the minds of much of the population, non-randomly dis-tributed, even though it has lived in the minds of many people who do not themselves live there or plan to do so, and thus are not part of the community that they imagine.

One of the major reasons for imagining a Bosnian community was to avoid the violence that almost always follows partition of a heterogeneous territory. The likelihood of violence was clear enough to many Yugoslavs in 1990–91: a phrase I heard often then was that “we’ll be in blood up to our knees” if the federation were to collapse. The war in Bosnia began eight months after fierce fighting and mutual ethnic cleansing had begun in Croatia, but during that time Bosnians were resigned: thus black humor in Bosnia in late 1991 asked “Why isn’t Bosnia involved in the war between Serbia and Croatia? Because that’s only the semi-finals, and we’ve been passed directly into the finals.”

Thus the imagining of a Bosnian community was morally defensible in order to avoid violence, but it was clearly contrary to what was likely to happen. Since then, the possibility of “the image of their communion” living in the minds of many of Bosnia’s citizens has become more remote than it was even in 1991. According to a 2002 World Bank study, while 74% of internally displaced Bosniaks wished to return to their pre-war homes in areas in which they would be members of local minorities (“minority returns”), only 19% of internally displaced Serbs and 29% of internally displaced Croats wished to do so (World Bank 2002: 25 n. 39). Their lack of desire to return may be well placed: one of the best ethnographers of Sarajevo, with experience before, during and after the war, reports that there in 2003 there was “widespread popular reluctance among Sarajevo

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Bosniacs to see Serbs return to the city” (Sorabji 2006: 13) – and this in the city that had, five years earlier, been declared by the highest repre-sentative of the international community to be “a multi-ethnic city; an open city; a tolerant city,” and the key for the entire country for minority returns (Westendorp 1998). But there are national differences in feelings of connection to Bosnia, because most Bosnian Serbs and Croats refuse to celebrate the Bosnian Statehood Day that the Bosniaks and the interna-tional community recognize.27

Letting Communities Re-Imagine Themselves

A leitmotif of the work of Meša Selimović is that Bosnians “try to hold back time” (1996: 408); that their situation is so complicated that “it wouldn’t be good if anything changed from the way it is now” (1996: 123), and that “the only possible solution would be this: for nothing to have happened. . . . So much the worse, because that alone is impossible” (Selimović 1996: 236). In essence, the efforts of the international community that have been directed at trying to restore Bosnia to what it (supposedly) was before the war have aimed at achieving “the only possible solution . . . that alone is impossible.” This is the meaning of re-building the symbolic bridge at Mostar but ignoring the decay of the bridge on the Drina.

Bosnian memories and literature hold both good and bad images of ethnic relations, because both have played out. The social links between them have been at times broken, at other times repaired – rather like the bridges in their literature. But they are repaired as people see the need to interact with each other and come to depend on each other. Even so, the image of the bridge is appropriate, because a bridge links shores that oth-erwise remain separated. So, too, the ethno-national groups in Bosnia.

Ten years after the end of the war, there is evidence that most of the people composing the peoples of Bosnia consent to live in a common state. Even the Bosnian Serbs, the people most resistant to inclusion in Bosnia, seem to be accepting it: the percentage of them who rejected Bos-nia dropped from almost 52% in 2002 to just under 45% in 2004.28 Yet the

27 Http://www.ohr.int/ohr-dept/press/bh-media-rep/round-ups/default/asp/content_id=6432 (26 Nov. 2001); http://www.ohr.int/ohr-dept/presso/bh-media-rep/round-ups/default.asp?content_id=28568 (26 Nov. 2002), Oslobodjenje 28 Nov. 2003.

28 Polls reported in Tuzla Night Owl and carried on Justwatch listserve 6/1/2004 (http://listserv.buffalo.edu/cgi-bin/wa?A2=ind0406&L=justwatch.

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country remains divided socially and politically. Of the 4.35 million people recorded in Bosnia in the April 1991 census, about 105,000 were killed or missing by the end of the war in late 1995 (Tabeau and Bijak 2005). As of May 2004, there were still 318,000 Displaced Persons within B&H, and an additional 99,000 refugees from B&H in Serbia and 3,600 in Croatia.29 Thus even without counting those who have emigrated from B&H or died since 1995, at least 16% of the pre-war population are no longer in the communities where they resided just before the war. Entire cities have been transformed, so that Sarajevo (49.3% Muslim before the war) is now reportedly about 80% Bosniak, Banja Luka (54.8% Serb before the war) now reportedly more than 90% Serb, and Mostar – newly celebrated for its putative renewed tolerance – is, as noted above, divided between an overwhelmingly Croat west and overwhelmingly Bosniak east. These fig-ures are qualified here as “reportedly” since there has not been a census in B&H since 1991; the Bosniaks reject it, preferring that the international community base decisions on the pre-war population distributions even though they are now inaccurate.30 The present distribution of populations seems likely to remain stable, because the return of people to the places where they lived before the war has dropped steadily from a high in 2001 of 80,000 to less than 5,000 in 2005.31 For their part, the representatives of the international community who actually rule B&H (see Knaus and Martin 2003) have not conducted an official census, perhaps because to do so would show the effects of the population shifts during and after the war, and thus contradict the image of “rebuilding” symbolized by ceremo-nies such as the rebuilding of the Mostar bridge.

Even though most of them now accept inclusion within a Bosnian state, the continued political division of the country remains important to many. A June 2004 public opinion survey in the Republika Srpska found that only 23% of the population supported the idea of a joint state similar to what had existed before 1991, while 35% wanted outright independence for the RS, and 41% would accept Bosnia only as presently structured,

29 Figures on refugees and DPs are from UNHCR as posted at http://www.unhcr.ba/return/index.htm and links from there (checked on 3 August 2004). On Sept. 21 2004, UNHCR celebrated the return of the millionth person to return to his or her pre-war home; but 2.2 million had been internally displaced or forced to leave Bosnia during the war, so the total return rate was still under 50% almost ten years after the Dayton agreement (OHR BiH Media Round-up, from www.ohr.int; checked 22 Sept. 2004).

30 OHR BiH Media Round-up, 5/8/2004 (link from www.ohr.int).31   UNHCR, “Returns Summary to Bosnia and Herzegovina from 01/01/1996 to 30/04/2006,

http://www.unhcr.ba/return/T4-042006.pdf (Checked 1 June 2006).

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with the RS as one of two essentially independent entities.32 Imposing rule on people who adamantly reject it is never likely to be an easy task, so the international community has, rightly, avoided it.33

Since Bosnia cannot be restored to what it was, those who support its recreation should be oriented towards helping the Bosnians build new social and political systems, ones that they are willing to live under. If social scientists are to be involved in the process of helping the peoples of Bosnia establish new social and political solutions that they themselves are willing to live under, rather than the ones that other Europeans and Americans think that they should (and thereby must) live under, their obligation is to stress what Geertz himself (1973b: 30) noted it was so easy to lose track of: “the political, economic, stratificatory realities.” To do so will be to help engineer the new social ties that may link Bosnia’s still distinct communities far more effectively than the invocation of invented traditions unacceptable to many of them, and let them form the commu-nities that their own imaginations lead them to bring into being rather than resist those that others seek to impose upon them.

Morality and Forbidden Knowledge

If my analysis is correct, as I believe it to be, much of international policy towards Bosnia and towards most of the rest of the former Yugoslavia amounts to preventing the reconstruction of the region in the ways that people there will accept, on the grounds that we do not accept the only kinds of configurations of nation and state that they are willing to live under. This is an odd morality, since it condemns the victims of the conflicts to continued misery, supposedly in the name of justice. Keynes’s brilliant and prescient polemic against the economic punishment of Germany by the 1919 Versailles treaty is apt: “in the unwinding of the complex fates of nations, justice is not so simple. And if it were, nations are not authorized,

32 Poll conducted by Strategic Marketing & Media Research Institute (SMMRI), Bel-grade; data cited by permission of SMMRI.

33 In April 2006, however, a US-sponsored attempt to amend the Bosnian constitution in order to create a unitary state was defeated. In the aftermath of this failure, and in the context of the June 2006 independence of Montenegro from Serbia and the upcoming independence of Kosovo, expected at the end of the year, sentiment among the Bosnian Serbs for a referendum on independence from Bosnia was extremely high.

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by religion or by natural morals, to visit on the children of their enemies the misdoings of their parents or of rulers” (Keynes 1988 [1920]: 225).34

But is my own analysis acceptable politically within anthropology? The American Anthropological Association has gone on record as being “deeply disturbed and saddened by the spread of bigotry and racial and ethnic hatred around the world, including, but not limited to claims of racial supremacy or inferiority, calls for ethnic cleansing and purity, fanning xenophobic fears for political purposes and religious-based discrimina-tion,” and urges the international scientific community “to actively coun-ter” claims that “scientific findings” support “exclusionary practices and racial, ethnic and religious hatred based on differences among groups.” The AAA does this in fulfillment of what it sees as a “responsibility to speak out against the use of purported scientific findings used to ‘justify’ racial or ethnic superiority, inferiority or stereotyping and used to ‘justify’ racial, ethnic and religious discrimination.”35

I am not sure what it means to “justify” discrimination, or, for that mat-ter, why the AAA Statement has that word in scare quotes. I am, however, concerned that my analysis of the reasons for Bosnia’s collapse and the less than promising prospects for building a civil society of equal citizens, may be criticized by some as justifying that which I am instead describ-ing. This makes me hesitant even to publish the analysis, a manifestation of the kind of informal constraints that Kempner, Perlis and Merz (2005) have identified as biasing research.36

But the larger question remains. Does our abhorrence of systems of dis-crimination, and of the Otherizing violence employed to bring them into effect, justify analyses premised on a primary duty to show the difference between what people are doing and what we think they should be doing? If we do this, we may be placing more accurate analyses of social situ-ations into the category of forbidden knowledge (Kempner et al. 2005),

34 Perhaps the coincidence that Keynes published his fact-based polemic against poli-cies supposedly grounded on “justice,” and Weber gave his lectures on science as a voca-tion and politics as a vocation at about the same time, in 1920, occurred because both had served as advisors to their respective national missions at the Versailles negotiations. Versailles produced one of the most devastating “peace” agreements of all time at the end of “the war to end all wars,” sometimes called “the peace to end all peace”. Both Keynes and Weber thus had lived experience of the consequences of ignoring social facts in pur-suit of supposedly higher morality.

35 American Anthropological Association Statement on the Misuse of “Scientific Find-ings” to Promote Bigotry and Racial and Ethnic Hatred and Discrimination (adopted Octo-ber 1995), www.aaanet.org/stmts/bigotry.htm.

36 Mission of the AAA, Section 1, http://www.aaanet.org/committees/lrp/lrplan.htm.

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which risks biasing our observations, thus our understandings not only of the situation being observed, but of the very nature of phenomena such as ethnic or national conflict.

Cassandra’s Curse: Thinking as Ethical Problem and Moral Act

What is the appropriate way to respond to this situation? To try to answer this question, I want to introduce a problem of ethics posited by Clifford Geertz in 1968, though he avoided it immediately thereafter by embarking on the research course initiated with “Notes on the Balinese Cockfight” and “Thick Description.” In a 1968 article omitted from The Interpreta-tion of Cultures (1973) and Local Knowledge (1983) but finally republished in a 2000 collection, Geertz (2000) considered the “ethical dimensions of fieldwork in the new states.” The article begins with asserting that there is a “stubbornly objective aspect of social research in the new states,” which is that research is much better at uncovering very serious social problems than at developing solutions for them (Geertz 2000: 24), and concludes that “the sort of moral atmosphere” in which he finds himself is “not entirely incomparable to that of the cancer surgeon who spends most of his effort delicately exposing severe pathologies he is not equipped to do anything about” (2000: 29). Geertz’s final position in the article was to argue for the need to apply “that style of thinking called social scientific” to the study of social problems, including “detachment or disinterestedness . . . the ability to look at persons and events (and oneself ) with an eye at once cold and concerned” (2000: 41, 40).

Famously, however, Geertz himself abandoned empirical social science shortly thereafter. In “Notes on the Balinese Cockfight” (1973a), he mar-shaled impressive empirical data to establish the economic, social and psychological importance of cockfighting to the Balinese, only to throw it all away in the last quarter of the article, invoking Auden and Yeats for the proposition that “Poetry makes nothing happen,” while invoking almost no data at all to put forth the proposition that the cockfight also makes nothing happen. Turning from data analysis to invocations of literature and literary theory, Geertz suddenly saw culture as texts read with dif-ficulty by anthropologists; then (in the introduction to the collection, but written after the cockfight article) proposed that cultural theory is not predictive, that its task is not to codify abstract regularities, not to general-ize across cultures but only within them (Geertz 1973b: 26).

This analogy of cultural analysis to the reading of literary symbolism clearly has utility – indeed, the present article owes its interpretation of

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the images of Bosnia presented by European Union observers and politi-cians as expressing life as those people most deeply do not want it to Geertz’s insight. At the same time, if my own analysis has any power, it is due to its being grounded on (dare I say empirical?) evidence, evidence which shows that whatever Bosnian society now is, it is not as interna-tional observers would imagine it into being.

What is the solution to the ethical problem? Geertz ended his consider-ation of it by restating the need to maintain detachment, as a moral stance of its own: “we force ourselves to see out of a conviction that blindness – or illusion – cripples virtue as it cripples people. Detachment comes not from a failure to care, but from a kind of caring resilient enough to with-stand an enormous tension between moral reaction and scientific obser-vation” (2000: 40). He saw the “flight into scientism, or, on the other side, to subjectivism,” as a sign that the tension had become unbearable, but also saw both of these escapes as pathologies: “Values are indeed values, and facts, alas, indeed facts” (2000: 40–41).

This statement is, of course, a reiteration of the classic position on the need to separate, as much as it is possible to do, one’s scientific work from one’s political positions. The most famous statement is Weber’s (1975a and 1975b), whose position has been adopted and restated by Tzvetan Todorov (1996). It is probably not coincidental that Todorov has made the opposite movement from that of Geertz, from literary criticism to empirically-grounded research, though going farther than Geertz (the title of whose most recent collection, Available Light: Anthropological Reflec-tions on Philosophical Topics, can be read as saying that he was doing “philosophy light”) into the realm, explicitly, of moral philosophy. In what seems a reference to the kind of “enormous tension” that Geertz sees in trying to consider intensely painful social situations, Todorov (1996a: 257) says that “Truth, it would seem, is incompatible with inner comfort.” For his part, Weber saw the best moral service that science could offer would be to uncover “inconvenient facts,” those contrary to dominant political sentiment (Weber 1975b: 147). Recognizing as well the enormous tension and personal discomfort in doing this, Weber suggested (1975b: 155) that the appropriate response for someone who could not maintain intellec-tual detachment would be to withdraw from science.

Such a withdrawal, however, is a recognition of a personal inability to withstand the discomforts of learning that which one might well prefer not be true. While certainly defensible – and no one can insist that any scholar continue to study subjects that that person finds unbearable to see – it is not of itself a moral position. If a goal of social science is to

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gain understanding in order to try to prevent the recurrence of tragedy, understanding the conditions under which such tragedies arise is a moral position. On this point, Todorov and the pre-“Cockfight” Geertz are on the same ground: that “to attempt to see human behavior in terms of the forces which animate it is an essential element in understanding it, and that to judge without understanding constitutes an offence against moral-ity” is Geertz’s position (2000: 40). Todorov, for his part, in response to the objection that “to understand is to accept,” counters that “If I understand nothing, I cannot be a good judge. . . . So that we may be spared the horror of repeating the past, we must not hesitate to set about reconstructing it” (Todorov 1996a: 260).

The problem remains, however, that as Geertz noted in 1968, often an understanding of a social problem does not suffice to permit correcting it. In such cases, the better the understanding, the more personally tragic the curse of Cassandra, whose warnings were accurate but contrary to what others were willing to accept. This is not only a psychological problem for the one who knows what will happen but cannot prevent it, but also may draw attacks on the morality or ethics of the writer for having presented evidence contrary to what many wish to believe: forbidden knowledge.

Yet I believe that anthropologists have no choice but to risk these fates. If anthropologists have any greater claim to authority, or even rel-evance, than anyone else, it is not because their morality is necessarily so much superior to everybody else’s, but rather because of their knowledge, presumably more reliable than that of others, of the dominant modes of representation of the peoples that they study.

A draft “position paper” on developing anthropological ethics by Ian Harper and Alberto Corsin-Jiménez for the Association of Social Anthro-pologists web page seems to reflect this commitment to reliance on the specificity of anthropological expertise, since it calls for ethical debates to be grounded on a belief “in the ethical integrity of our profession, and trust in our expert knowledge.” At the same time, however, they also say that ethical considerations should be “politically conscious and aware of the political conditions under which our knowledge is produced” (Harper and Corsin-Jiménez 2005: 2). But what if political consciousness impedes perception of situations, and thus the very grounding of our expertise?

With this problem in mind, the tendency of existing codes of ethics to “emphasize values such as . . . the obligation to abide by the scientific community’s standards governing adequacy of research, honesty, general availability of the results and so on” (Nas 2005) may not be misplaced. The problem of trying to foster “debate that is not simply about our pro-

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fessional practice but about our contributions to public debates about ethical principles and practice in the world” (Gledhill 2006) is to ensure that such discussions do not undercut the reliability of anthropologists’ claims to expertise. It is especially worrisome that giving primacy to the political may lead to allegations against reputable anthropologists who have done careful, ethical research, on political grounds masquerading as ethical ones (see, for example, Denich 2005). Note that the reverse is not likely to occur: to argue that a research paradigm mistakes a presumption for an empirical finding is to impute flaws in the theory and methods of the research, not the ethics of the researcher.

Of course, having to take seriously the fact that, for example, many Serbs and Croats in Bosnia see their separate communities as not part of a putative Bosnian nation is depressing, and may well be as demoralizing as Geertz suggested work in “the new nations” is likely to be. Yet it is dif-ficult to see how analyzing situations primarily in terms of what we think they should be rather than what local people see them as being or wish them to be, can really assist in rebuilding societies after social divisions have produced ethnic conflict. Thus it is not only that anthropologists, regardless of their own position, are forced to engage with these modes of thought, but rather that their whole claim to relevance for any discussion is based on their doing so.

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CODA

CHAPTER SIXTEEN

FROM EUPHORIA TO EU-GOSLAVIA

While the chapters in this book have been concerned primarily with events in Yugoslavia between 1989 and 2010, I want to end the volume by looking more widely at processes in the rest of Europe since the end of the Cold War. Much has been written about how events in Yugoslavia differed from other European processes after the sudden end of the Cold War, but most of it seems to have been premised on what should have happened instead – indeed, it seems to me that a lot of work on ex-YU has been based on the analysis of wished-for counterfactuals. I’d like to end this book by looking instead at some of the ways in which what hap-pened in Yugoslavia may be useful for understanding what is happening in Europe twenty years after the end of state socialism. This means that in this last chapter I will stay away from the wars; such conflicts are not likely in Europe, at least not at this moment. But it is useful to look at how some of the political and economic processes that played out in Yugosla-via about 20 years ago may be informative now, for understanding other European processes.

Differences between the processes going on in the EC – EU and those in YU did not pass unnoticed in Yugoslavia in the late 1980s, and “Europe” was the goal of many. The slogan of even the Slovenian Communists in the 1990 elections was “Europe now!” (Evropa zdaj). What was meant by that Europe was left unspecified except by polemical contrasts with a stylized and denigrated Balkans, a well-known discourse well-analyzed by others. But there were some reasonably clear tropes.

One was anti-militarism. In part this was a tactic in distinguishing opposition politicians from some of the strongest supporters of Titoism, in the leadership of the Yugoslav Peoples’ Army (YPA), and especially on the part of non-Serb nationalists, but standing armies have declined throughout the EU countries. Another was economic prosperity, since it was clear enough that while Yugoslav self-management socialism worked better than did Soviet-style economics, it was not leading to west Euro-pean standards – recall that Yugoslavia had bouts of hyper-inflation in the 1980s as well. And a third was democracy, of course. As a Fulbrighter in 1982, I was already hearing the jokes about how “In Yugoslavia, we don’t

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have elections, just voting,” or “We don’t need more than one candidate because we only elect the best one anyway.” Opening up the political sys-tem was clearly a necessity.

I will spend most of my time on these last two, since “free-market democracy” is a pretty standard set phrase. But let me start, briefly, with that European ideal of anti-militarism and with the only ex-YU republic thus far to make it all the way into the EU, Slovenia.

Anti-militarism?

In Slovenia in particular, in the final years of Yugoslavia, anti-militarism became part of the main stream of opposition and Slovenian nationalist politics. In the mid-1980s, a pacifist movement targeting the YPA and led by Janez Janša, later Prime Minister of Slovenia from 2004–2008 and from February 2012, criticized the YPA. A specific demand was that recruits into the YPA from Slovenia were to serve only in Slovenia. By 1989–90, increasing tensions with the leadership of Serbia led to Slovenian support for ethnic Albanians and the withdrawal by the Slovenes in early 1990 of Slovenian members of the federal police forces then keeping control over Kosovo; ironically, those police had been sent by the Slovenian politician Stane Dolanc when he was federal minister of the interior.

The Slovenian position on all of this was well captured in a book by someone who was then a dissident sociologist, Dimitrij Rupel, in a book called From Military to Civil Society. Rupel later went on to become For-eign Minister, Mayor of Ljubljana, and Slovenian Ambassador to the USA. It was in that last role that he stated in the journal Foreign Affairs in 1998 that Slovenia had the highest per capita spending on defense in all of central Europe, and therefore should be admitted to NATO1 – so much for de-emphasizing the military! And that expenditure was accomplished under defense ministers that included that former pacifist Janez Janša, who, it turns out, was not really a pacifist at all but rather a Slovenian nationalist; he did not object to armies but rather to the Yugoslav army, mainly because it was part of multi-ethnic Yugoslavia rather than largely mono-ethnic Slovenia.

As for the use of that well-supported new military, recall that a demand during the last Yugoslav years was that Slovenes should only serve in Slovenia,

1 Dimitrij Rupel, Letter to the Editor, Foreign Affairs 77(#3): 159–160 (1998).

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and that the military could only be a defensive force. Well, according to Slovenia’s Ministry of Defense, in early 2012, Slovenian forces were serving in Afghanistan, Lebanon, Somalia and Syria outside of the former Yugosla-via; and within what had been the former SFRY, where the demand was that Slovenes could not be made to serve in the YPA, they were serving in Bosnia, Macedonia, Serbia, and most wonderfully, Kosovo – they had been recalled from there in 1990.2 So it seems that while it was not ok for Slovenes to serve as fellow citizens in these places in a defensive army, they have been able do so as foreigners in intervening forces.

If one peruses the web pages of the various militaries of the various ex-Yugoslav republics, it would seem that the demise of the YPA did not necessarily lead to a decline in the importance of the military, or even of military spending (it is amazingly expensive to equip and operate to NATO standards), but rather a loss of command and control by the ex-Yugoslav peoples themselves. Just about everybody’s army has or has had people in Iraq and/or Afghanistan.

I’m reminded of the palace at Persepolis, built by Darius and Xerxes, which has a central ceremonial staircase with a frieze of the subject nations bringing tribute to the Emperor: gold, foods, weapons, soldiers . . . . Granting that the soldiers now are volunteers, but the new armies are expensive and their purpose is not to defend their own homelands, but rather to provide small units to fight others’ causes, tribute, really, to the new masters.

Democracy and Economics

The events in Yugoslavia are rightly seen as a deviation from the general track of European development outside of the formerly Soviet space after World War II, though there were some parallels even there: the Greek Civil War 1945–49, Cyprus 1963–64 and 1974, and Northern Ireland in the 1970s. Even those conflicts produced fewer casualties than the wars in Yugoslavia, though the Greek civil war did see perhaps 65,000 deaths, compared to perhaps 120,000 in the former Yugoslavia, 1991–99.

Yet the events in Yugoslavia after 1991 were no deviation from the gen-eral trends of European history from at least the start of the 19th century through 1945. As laid out in some detail in previous chapters, the breakup

2 See http://www.slovenskavojska.si/en/international-cooperation/ (checked 6 March 2012).

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of Yugoslavia was into classic central European nation-states, in which the ethnic nation [narod, das Volk] became sovereign in its own state (a territory with a government). This was simply the latest such shifting of populations to match territories in Europe – recall that Yugoslavia was one of very few multi-national states left in Europe by 1991, the others being Czechoslovakia (soon gone), Belgium (without a government, from April 2010 until December 2011, longer than Bosnia) and Switzerland (where there is never any doubt to which national group a given canton belongs).

At the same time, the EU is supposed to be a new form of multi-national polity, not exactly a state, and the term “federation” is avoided (as it is in India, btw – constitutionally the Union of India, and specifying relations between the Union and the States, avoiding the word “federation,” though it is a highly centralized federation in fact).

But Yugoslavia was also a new form of multi-national federation, based on the voluntary (in theory) union of the Yugoslav peoples (narodi) rather than states, though composed of federal units (Republics and Autonomous Provinces) each of which had its own constitution (which Indian states except for Kashmir do not). What was meant to be innovative was the structuring of relations between the Federal and Republican/Provincial governments, with power largely resting, at least formally, in the latter, since the federal units could veto federal legislation. The result was what the former Pedro Ramet (now Sabrina) saw as a balance of power system of independent states, and a Serbian analyst (Slobodan Samardžić) called “combative federalism,” in which decisions were routinely held hostage by each federal unit (Ramet 1984; Samardžić 1990).

This worked well enough as long as it was not democratic. My late col-league at Pitt Dennison Rusinow referred to the “Yugoslav experiment” as being held together by one “ring of power” (he was, after all, studying it from the mid-1960s until the mid-1970s and was, like J. R. R. Tolkien, an Oxford man), the League of Communists of Yugoslavia (Rusinow 1977). Standard transmission-belt theory of state socialism (about as standard as any part of Yugoslav socialism) in which the LCY made decisions, trans-mitted those to the legislative bodies to enact and the administrative ones to implement. A purely elite politics and perhaps for that very reason able to produce what seemed to be the chimera that Arend Ljiphart has long asserted to be a real creature, a consociation.

The mythological nature of the beast became apparent, however, in the early 1980s, and in a way that leads us to parallels with the EU today. One of the key elements of Yugoslavia’s unity was the single currency, the

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Yugoslav dinar. Rather like the Euro, it bore several languages and their associated scripts, and avoided depicting real people in favor of ideologi-cal symbols; it was illustrated by images of socialist prosperity, such as a worker, a ship, several monumental sculptures and the like – actually there was an image of a statue of Nikola Tesla on the 500 dinar note, but this celebrated science. While the banknotes were issued by the National Bank of Yugoslavia, each republic was able to issue credits, and more importantly to take out loans from foreign banks, without control by the National Bank, though the National Bank was responsible for repayment.

The result was relative prosperity as long as Tito was alive, on borrowed money but increasing debt, but recriminations over that debt broke out almost as soon as he died, in 1980. By my first Fulbright year (1981) the country was in a “permanent crisis” (stalna kriza) with the first consumer shortages since the 1960s, said to be caused by inability to service the for-eign debt, then $20 billion or so. The IMF required budget cuts and other forms of austerity, which produced disruptions at all levels, but especially in the relations between the leaderships of the various republics. In the Yugoslav (con)federation, decision-making required unanimity of the fed-eral units, and this was not possible. Inevitably, some republics were better off financially than others, and so the interests of the republics were often seen as being at odds. At best, the leaderships agreed to temporary mea-sures in order to be seen to be working together. Meanwhile, the effects of the austerity programs mandated by the IMDF were increasingly eroding what had been a very substantial middle class, impoverishing many who had been living quite comfortably.

Even under the supposed central control of the League of Communists there had been a strong tendency for republican leaderships to be obstruc-tionist, as the works by Ramet and Samardžić mentioned earlier show clearly. As the 1980s developed, however, a new consideration also arose: the prospect of breaking the monopoly of the League of Communists and holding real, competitive elections. The economic crisis was also produc-ing analyses of the unworkable nature of the peculiar Yugoslav brand of self-management socialism, and problems in the economic system and the political system were seen to be linked.

The result of all of this, however, was institutional breakdown. Each republican leadership worked only for the benefit of its own constitu-ency, and coordinated little except to undermine federal authority and institutions when they threatened republican autonomy. More than that, however, the several republican leaderships, and their intellectuals and other leading public figures, became increasingly hostile to each other.

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The leaderships of the richer republics blamed the people and leaderships of the less well-off ones for the economic crisis, in terms wonderfully rem-iniscent of the kinds of rhetorics now used by northern Europeans about southern Europeans (indeed, even saying that southerners and easterners were congenitally lazy and inefficient because they were southerners and easterners; welcome to the world of symbolic geography). For their part, the denigrated southerners accused the northerners of having unfairly rigged the system and of exploiting those less well off, another familiar refrain these days.

The best study of all of this in English is the first 100 pages or so of Susan Woodward’s Balkan Tragedy (1995), but many of her sources come from work done in the early 1980s by the Slovenian economist Jože Mencinger, who shortly thereafter became Slovenia’s Economics Minister at the time of independence, later Rektor of the University of Ljubljana. Mencinger gave a number of interviews in 2011–12 in which he argued that the EU by then resembled the SFRY ca. 1983, and this is the point I want to discuss.

Consider: the collapse of Yugoslavia began with an economic crisis, involving high levels of sovereign debt that, through the mechanism of a single currency that was shared by states at very unequal levels of eco-nomic development and prosperity, set the leaderships of these states on mutually antagonistic political courses, in which each leadership defended the interests of its own state, at the expense of other states and of the fed-eration itself. Since decisions could only be taken by consensus, deadlock was common. The continuing inability of the leaderships to address the economic crises effectively led ultimately to the breakdown of the consti-tutional order and thus of Yugoslavia as a state.

Well, so what, one might say. The EU is very different from socialist Yugoslavia, not least because Yugoslavia was not democratic and the EU is. Or at least, its component states are – the “democratic deficit” of the EU itself is a well-worn topic of analysis that we will wear on a bit more.

However, I wish to compare the institutional structure of the EU under the Lisbon Treaty with those of the SFRY under the 1974 Constitution. This would seem a valid exercise unless one were to take the position that the institutional arrangements don’t matter because pragmatic politi-cians will find solutions despite what the lawyers might say – or rather, will find solutions and then tell the lawyers to justify them. This would be similar to the arguments I kept hearing in 1989–90, when I was analyzing the unworkability of the constitutional system of Yugoslavia; that it didn’t matter because pragmatic politicians would ignore it. I wrote a book argu-ing quite the contrary. But if the salvation of the EU lies in elites ignoring

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the Lisbon Treaty in order to serve the common good, the democratic nature of the EU itself seems thereby shown to be an illusion.

That might not be bad, of course. Mencinger himself has argued that the EU will survive precisely because it is not democratic and the govern-ing elites can make pragmatic arrangements more or less regardless of what people would vote for were they given the chance, which is why they are not to be given the chance – but that formulation also sounds like Yugoslavia ca. 1990.

What I think merits most discussion, though, is the striking similarity in the democratic deficits of the EU under the Lisbon Treaty and Yugosla-via under the 1974 constitution, in circumstances where politicians actu-ally do have to worry about the voters in their home state constituencies. Tito, of course, never had to worry about such things, but his successors did, and as the money ran out, especially so. So a brief comparison is in order, of the oddities of two experimental systems for creating a polity coordinating European nation-states, the 1974 Yugoslav constitution and the Lisbon Treaty.

Let’s start with the Presidency of Yugoslavia and the Council of the EU. Marshall Tito was President of the Republic but that office ended with him, leaving instead a group Presidency with a rotating President of the Presidency, primus inter pares, if you will. The members of this Presidency were sent by their home Republics/Autonomous Provinces (hereafter sim-ply Republics) and the rotation of the Presidency of the Presidency was pre-determined in date and in terms of which Republic’s representative would assume the position.

To those who study the EU, this should sound familiar, because the Council of the EU operates in much the same way. There were also quali-fied majority voting rules in the SFRY Presidency, as in the Council. And while the Council of the EU is made up of ministers, rather than top-level politicians, so was the Presidency of the SFRY. Real power lay in the constituent members of the Federation.

The YU Presidency and the Council of the EU are largely symbolic, not executive. Executive authority in both systems lies elsewhere. In Yugosla-via, central executive power was held by the Federal Executive Council (FEC), with a Prime Minister and two deputies who were nominated by the Presidency and confirmed by the Federal Assembly. They then formed the Government, which proposed legislation to the Federal Assembly and exercised executive authority.

In the EU, we find the European Commission, under a President nomi-nated by the European Council (not the Council of the EU mentioned

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above; more on the European Council below) and confirmed by the European Parliament. It is the Commission that functions as an executive authority.

Note that thus far, neither system provides for accountability to voters for either the State (Presidency of the SFRY/Council of the EU) or Gov-ernment (FEC/European Commission), except through confirmation of political appointees by a Parliament.

Which brings us to the Parliaments. The European Parliament, the members of which are directly elected, does not have the right to initiate legislation, but rather is able to approve, or fail to do so, legislation pro-posed by the Commission, and even then, this approval power is shared with the Council under “co-decision” rules. This “co-decision” process is more empowering than the earlier provisions by which the Council was required to “consult” with the Parliament before passing legislation, but could ignore the views of Parliament, but is still a long way from being a co-equal branch of government.

As for the SFRY, the bicameral Federal Assembly did have the right to initiate legislation, but the members were not directly elected. Instead, the members of the Federal Chamber were elected by the assemblies of the constituent units from lists provided by the Socialist Alliance of Work-ing People, while the members of the Chamber of Republic and Provinces were themselves members of the Republican/Provincial assemblies, del-egated to the Federal Assembly. While in theory the FEC reported to the Federal Assembly, in practice the FEC proposed legislation to the Fed-eral Assembly. There were also provisions by which the Federal Assembly needed to gain assent from qualified majorities of the Republican/Provin-cial assemblies for legislation to pass. In practice, all of this meant that everybody was expected to follow the directives of the League of Commu-nists of Yugoslavia, but if there were problems the FEC and the Presidency could impose temporary legislation.

So – where does power lie?In the SFRY, this was easy: Basic Principle VIII of the 1974 Constitu-

tion proclaimed the League of Communists of Yugoslavia to be the “prime mover and exponent of political activity.” This was Denny Rusinow’s sin-gle “ring of power,” though the drafters never anticipated that the LCY itself would fail, as it did in January 1990.

As for the EU, Art. 15.1 of the Lisbon Treaty provides that “The Euro-pean Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priori-ties thereof.” Recall that it is this European Council that nominates the

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President of the European Commission, and you see a structure quite like that of the LCY.

A big difference, of course, is that the European Council is composed of the heads of state or of governments of the member states, thus of people who do have democratic political legitimacy – but each of whom is elected by, and responsible to, only one of the state members, not the entire population. And indeed, here comes another similarity between the SFRY and the EU: no political actor is ever responsible to the entire population. The EU, like the SFRY, is composed of states, and political rep-resentation is mediated by the states, never directly to a body of European citizens.

In fact, when the LCY fell apart in 1990, Yugoslavia was treated to the travelling road show of what was effectively, if informally, the Yugoslav equivalent of the European Council in that the Presidents of the Republics met frequently as a body to try to decide basic issues. This did not work because, as elected politicians, each President was responding exclusively to his own electorate, at the expense of Yugoslavia as an entity.

Of course, it might be said that it didn’t work because the Yugoslav presidents in question included the likes of Slobodan Milošević and Franjo Tudjman, while the EU has had politicians of much greater stature, such as Nikolas Sarkozy, Silvio Berlusconi, and my personal favorite, Hungarian Prime Minister from 2004–2009 Ferenc Gyurcsány, who was caught on tape saying of his Government that “we lied throughout the last year-and-a-half, two years. It was totally clear that what we are saying is not true. You cannot quote any significant government measure we can be proud of, other than at the end we managed to bring the government back from the brink. Nothing. If we have to give account to the country about what we did for four years, then what do we say?” – and still he survived for three more years in power.

On the other hand, democracy promotion does not seem to be in style. Quite the contrary, in fact. The events in Greece in 2011–12 seem to reveal a European Union attitude towards democracy that would rival that of Marshall Tito. Late in 2011, as the extent of the Greek economic crisis hit home, the Germans, among others, demanded that Greece adopt economic policies rather similar to those in 1980s Romania of Nicolae Ceauşescu, who had decided that Romania could not be independent unless it paid its foreign debt, and thus devoted national earnings mainly to that task. The result was a form of “austerity” that, as far as I can tell, was more devastating to the Romanian population in the 1980s than were the international sanctions imposed on Serbia in the 1990s. The elected

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Greek Prime Minister, Papandreau, suddenly proclaimed that such a fate-ful course must be approved by the people in a referendum. The outcry against this from outside of Greece was dramatic; Papandreau was forced to resign. Since then Greece has been run by unelected politicians, and the members of the major parties have been compelled to agree that even if they win election they will not try to change the political and economic arrangements being forced on them.

So much for democracy – the Greeks can elect whomever they wish, but those politicians will not be able to make the most basic decisions of self-government.

However, the Greeks are perhaps providing a sideshow. The really important part of the restructuring of the EU is takes the form of a “Treaty on Stability, Coordination and Governance in the Economic and Mon-etary Union,” the “Eurozone Treaty” of March 1, 2012. This is a remarkable document, because it was developed by those unelected politicians of the European Union, yet it requires constitutional and legal changes by the member states; provides strict limits on how those states may function, and also provides for automatic penalties to be imposed upon them. Thus the European Union is displacing elected governments with unelected ones, who claim to be acting according to the most scientific principles of economics and thus the most moral ones of politics, and whose decisions must therefore be imposed on everybody. Does this sound familiar? The Eurozone Treaty reduces national parliaments to what they were under communism, the transmission belts that are charged with enacting what the Party leadership determines to be necessary.

For those with the appetite for parsing legalese, I would actually rec-ommend comparing the Eurozone Treaty with the economic sections of the complex 1974 Constitution of the SFRY. It would appear that Edvard Kardelj is alive and living in Brussels.

One may well wonder how this will all play out, but it seems to me likely that politicians in the various EU countries will, like their counter-parts in the SFRY, run on claims to represent the national interest, and to defend it against the outrageous actions of their supposedly fellow Euro-peans. It is also difficult to foresee what will happen if the EU decides to try to enforce some kinds of regulations on member states. It is difficult to envision conflicts escalating into warfare – but then again, that was also difficult to envision in Yugoslavia until 1991.

In raising these parallels between the Yugoslav Federation and the EU, I am not suggesting that the latter will break down into wars, as did Yugo-slavia. But the main reason for this is that the forced movements of popu-lations and nation-state territorial homogenization/ethnic hegemony now

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called “ethnic cleansing” were accomplished in the EU countries by 1945–46 (except for Cyprus 1974; Bulgaria’s expulsions of Turks in the 1980s, and when Croatia joins, Croatia 1995). Nationalist politics in EU countries can target such usual suspects as the Roma (e.g. in the Czech Republic, France and Bulgaria) or gastarbeiters, not only Turks and Arabs but also “Polish plumbers” and the like – and of course, one of the early secession-ist movements in Slovenia exploited and furthered hostility to Yugoslavs in that Republic who were not ethnic Slovenes, and were politely called gastarbeiters (even though they were citizens) and less politely a num-ber of other terms. But such situations are not especially dangerous to the states that engage in them, because the minorities lack territories for which an “autonomy” claim can be made.

Instead, I want to consider ways to understand how and why multina-tional polities in Europe have a history of not functioning, and perhaps let us build these understandings into our analyses of the development of the EU, and its choices. Perhaps some realism in assessments of “European” ideas, histories and cultures, instead of the Occidentalist presumptions that Europe is the crown of creation, might have either led to the creation of more effective European institutions or the avoidance of the adoption of the Euro without the governmental mechanisms needed to support a common currency.

Perhaps I might end by recalling the interesting etymology of the term Euphoria. While the word now has a general meaning of extreme happi-ness, it is also generally seen as a passing phenomenon and one that may be brought about by unusual, artificial stimuli. An even older meaning is of a false feeling of wellness in one who is actually very ill.

In early 2012, it seems that the vision of “Europe” that drove politics in Yugoslavia in the late 1980s was based on illusions as powerful as those that had driven socialism in the preceding decades, but that these illu-sions spread more widely than only to the Yugoslavs. If the EU is to avoid the fate of YU, perhaps it is best to acknowledge the fallacies of suppress-ing political life, and thus subjecting peoples, to the mandates of a single economic system.

References

Ramet, P. (1984). Nationalism and Federalism in Yugoslavia, 1963–1983. Bloomington, IN, Indiana University Press.

Rusinow, D. I. (1977). The Yugoslav experiment, 1948–1974. London, C. Hurst for the Royal Institute of International Affairs.

Samardžić, S. (1990). Jugosavija pred Iskušenjem Federalizma. Beograd, Stručna Knjiga.

American Anthropological Association, 367Amnesty International, 203, 239, 264–65

and genocide denial, 248Anderson, Benedict, 290–91, 347, 363Andrić, Ivo, 71Arendt, Hannah, 120–21Armenian genocide, 242, 248, 260

Badinter Committee, 300Bakić-Hayden, Milica, 18Banac, Ivo, 7Beneš, Edvard, 113, 131Bogosavljević, Srdjan, 134Borneman, John, 185–86Bosnia & Herzegovina

casualties 1992–95, 137, 145–46, 153–54, 252–53

declaration of sovereignty, 55, 299, 328–29

ethnic political history, 323government, 303–5, 321–24public opinion of state, 364–66vital interest, 311

Bosnian (bosanac) identity, 78–79Brezhnev doctrine, 28Butmir proposals, 319–20, 325, 327–38

censusas categorizing device, 348Bosnia & Herzegovina in 1991, 89, 105,

296Croatia in 1991, 16Slovenia in 1991, 89

Četnik, 5–8, 13–15, 34citizenship, 100–104

and ethnicity, 206in Croatia, 101–4

civil society, 26, 72, 143, 146cluster bombs, 216–18collective guilt, 129, 133concentration camps, 154–57constituent peoples, 332constitutional nationalism, 12, 95, 122constitutions & ethnic nation, 86, 95–100Council of Europe

and hate speech, 247Croatian Democratic Union, 126

Das, Veena, 179–81Dayton constitution, 303, 309–10, 319–24,

325–27Del Ponte, Carla, 267–68democracy, 379–87

India, 125–26demos & ethnos, 289, 302Djilas, Milovan, 34–35Dodik, Milorad, 330Douglas, Mary, 84Drašković, Vuk, 149, 222–23

electionsBosnia & Herzegovina in 1990, 50–53,

337Bosnia & Herzegovina in 1996, 306Croatia in 1990, 36Slovenia in 1990, 36Yugoslavia in 1990, 95

ethnic cleansing, xiv, 59, 84, 175, 186, 300, 343and self-determination, 122definition, 117–18

European Convention on Human Rights, 240

European Court of Human Rights, 250European Union, ix

crisis, 377, 379–87recognition of Yugoslav republics, 123,

127Evans-Pritchard, E.E., 344

Federalist Papers, 20, 313, 330forced population movements

Germans, 114–15, 129–31, 315Greeks & Turks, 315India, 124–26

Gams, Andrija, 29Geertz, Clifford, 347, 350, 368–70Geneva Conventions, 221, 227genocide

definition, 161, 254rhetorics, 116, 138, 148–52, 262–64,

See also HolocaustUN definition, 115, 129

Goli Otok, 28

INDEX

390 index

greater Croatia, 55, 66, 75greater Serbia, 6, 55, 66, 75

Hammel, Eugene, 18Havel, Vaclav, 114, 235–36Helsinki Watch, x, 203Herceg-Bosna, 74High Representative, 280, 305

Bonn Powers, 321Hitler, Adolf, 210Holbrooke, Richard, 154, 231–32Holocaust, 120

museum, 158–60rhetorics, 116–17, 154–58

Human Rights Watch, 213–15, 233–35, 283Huntington, Samuel, 20–22

imagined community, 90Independent State of Croatia, 33, 37–42,

92, 142, 209, 297mass killings, 262–63

intermarriage, 9–10, 92–93, 195, 357International Court of Justice

Bosnia & Herzegovina v. Serbia, 168, 258–59

International Criminal Tribunal for the Former Yugoslavia (ICTY), 156, 160–67, 172, 177, 215–37and genocide in Srebrenica, 254–57, 259budget, 278–80, 355notion of justice, 267prosecution, 251public opinion of, 271–74

international interventionhumanitarian justification, 213–16in Kosovo, 233–34

international nature of Bosnian war, 227–31

Izetbegović, Alija, 20, 57, 71, 74, 118, 157

Jasenovac, 8, 38–39, 43, 133, 150, 155Jinnah, Mohammed Ali, 76–77, 118

Kafka, Franz, 114Kalajić, Dragoš, 74Karadžić, Radovan, 83, 118, 219Kashmir, 339Kingdom of Yugoslavia, 142Kosovo, 30–31, 339Kouchner, Bernard, 213–14Krajina region, Croatia, 124Krajišnik, Momčilo, 164–66, 257–58, 328Krstić, Radislav, 254–61

trial of, 160–67Kundera, Milan, 129

League of Communists of Yugoslavia, 25–29

League of Nations analysis of minority problem, 121Ljiphart, Arend, 380Longinović, Tomislav, 18

MacKinnon, Catherine, 176Martić, Milan, 216–18mass killings

Bosnia 1990s, 138World War II Yugoslavia, xii, 132–34,

138, 144–45, 152–53, See also Independent State of Croatia

Mencinger, Jože, 382–83Mihailović, Draža, 6Milošević, Slobodan, 12, 32, 40, 222Mladić, Ratko, 219Mostar, Herzegovina, 350

nationnarod, ix, 6, 90, 95–99, 148, 290, 291, 380sovereign, 292

nation-state, 12, 25, 90, 141ethnic, 86, 206–7, 208–9, 345, 356ideology, 291–92logics, 121–22

NATO. See also international interventionbombing of Serbia, 219–20civilian targets, 217–22

NDH. See Independent State of CroatiaNehru, Jawaharlal, 76–77, 118Nuremberg Tribunal, 269–70

Opačić, Dragan, 224orientalism, xi, 5, 73, See also stereotypes

nesting orientalisms, 18Ottoman empire, 73Owen, Lord David, 60–61

Paraga, Dobroslav, 204partition

and Bosnia & Herzegovina, 50, 68, 106, 300

and India, 17, 69, 76–77, 124and liminality, 187–88

Party of Democratic Action, 126Peace Implementation Council (PIC),

305–6Petrovna, Dimitrina, 236–37

rapeand mass violence, 172–74as genocide, 190–93as war crime, 175–78, 190–93

index 391

Bosnian war, 175, 184–86Liminality of state, 187, 195–96partition of India, 178–79symbolic violence, 184

Republika Srpska, 228Republika Srpska Krajina, 216

Schabas, William, 259–60Schindler, Oskar, 113self-determination, 22, 90, 95–99, 104, 293Selimović, Meša, 338, 360–61Serbian Academy Memorandum, 11–12, 147Serbian Democratic Party, 126Šešelj, Vojislav, 14, 15, 204Šiber, Ivan, 11Silajdžić, Haris, 154sovereignty

ethnically defined, 295–96Srebrenica, 169, 253Starčević, Ante, 7stereotypes

Bosnia, tradition of tolerance, 127, 347, 349, 358–62

Europe, 4, 74, 360, 377Islam, 71–72Muslims, 75the Balkans, 4, 19

symbolic geography, xi, 5, 18, 79

Tadić, Duškotrial, 223–27

Tambiah, Stanley, 72Tihić, Sulejman, 352Tito, Josip Broz, 28, 77, 142Tito’s break with Stalin, 28Todorova, Maria, 19, 73Tokača, Mirsad, 145, 253treaty of Versailles, 121Tudjman, Franjo, 12, 14–15, 38, 72, 120–21,

131, 149–50, 208–9

Ustaša, 5–8, 13–15, 34–44

Vance, Cyrus, 60–61Vance-Owen plan, 62–67, 99Versailles treaty, 277

Weber, Max, 139West, Rebecca, 70Wilson, Woodrow, 130

Yugoslav constitution of 1974, 30, 32, 90, 383

Yugoslav federal army, 3Yugoslav idea, 141–42Yugoslav identity, 10–11, 16, 93–94Yugoslav Partisan army, 34Yugoslav self-management, 28, 98Yugoslavia

population diversity, 91

Žarkov, Dubravka, 185–86