From Yugoslavia to the Western Balkans

Balkan Studies Library

Editor-in-Chief
Zoran Milutinovi, University College London
Editorial Board
Gordon N. Bardos, Columbia University
Alex Drace-Francis, University of Amsterdam
Jasna Dragovi-Soso, Goldsmiths, University of London
Christian Voss, Humboldt University, Berlin
Advisory Board
Marie-Janine Calic, University of Munich
Lenard J. Cohen, Simon Fraser University
Radmila Gorup, Columbia University
Robert M. Hayden, University of Pittsburgh
Robert Hodel, Hamburg University
Anna Krasteva, New Bulgarian University
Galin Tihanov, Queen Mary, University of London
Maria 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, 19912011
By
Robert M. Hayden
LEIDENBOSTON
2013
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, 19912011 / 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. YugoslaviaPolitics and government19922003. 2. Yugoslav War, 19911995. 3. Genocide
Yugoslavia. 4. NationalismYugoslavia. 5. YugoslaviaEthnic relations. 6. Former Yugoslav
republicsPolitics and government. 7. Bosnia and HercegovinaPolitics and government.
8. Former Yugoslav republicsEthnic relations. 9. Ethnic conflictFormer Yugoslav republics.
10. NationalismFormer Yugoslav republics. I. Title.
DR1318.H39 2013
949.703dc23
2012034435
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CONTENTS
Acknowledgments .......................................................................................... vii
Introduction ..................................................................................................... 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, 199093 ........................ 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. Schindlers Fate: Genocide, Ethnic Cleansing and Population
Transfers ...................................................................................................... 113
7. Mass Killings and Images of Genocide in Bosnia, 194145
and 199295 ................................................................................................ 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. Whats 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. 207222. 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. 167184.
Santa Fe, NM: School for American Research, 1994.
The Partition of Bosnia and Herzegovina, 19901993. RFE/FL Research
Report 2(22): pp. 114, 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. 116124. 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): 783801, 1996.
Schindlers Fate: Genocide, Ethnic Cleansing and Population Transfers.
A slightly edited version was published in Slavic Review, 55(4): 727748,
1996. Reprinted with the permission of the publisher.
viii acknowledgments
Mass Killings and Images of Genocide in Bosnia, 194145 and 199295,
in Dan Stone, ed., The Historiography of Genocide, pp. 487516. London:
Palgrave, 2008.
Mass Rape and Rape Avoidance in Ethno-national Conflicts: Sexual Vio-
lence in Liminalized States. American Anthropologist, 102(1): 274, 2000.
Human Rights and the Civil War in Yugoslavia. Economic & Political
Weekly, pp. 12521254, June 1320, 1992.
Biased Justice: Humanrightsism and the International Criminal Tribunal
for Yugoslavia. Cleveland State Law Review, 47(4): 549573, 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): 384407, 2008.
Reprinted with the permission of the publisher.
Whats 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): 313330, 2011.
Democracy without a Demos? The Bosnian Constitutional Experiment
and the Intentional Construction of Nonfunctioning States. East Euro-
pean Politics & Societies 19(2): 226259, 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): 316, 2011.
Moral Vision and Impaired Insight: The Imagining of Other Peoples
Communities in Bosnia. Current Anthropology, 48(1): 105131, 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 wasnt.
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 (toboe, 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 199192,
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 Baki-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 Woodwards Balkan Tragedy (1995), Lenard Cohens Broken
Bonds (1993), Steven Burg and Paul Shoups The War in Bosnia Herze-
govina (1999), and Xavier Bougarels Bosnie: Anatomie dun 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 etniks, some Serbs
did adopt etnik emblems and slogans; and as Serb writers and politicians
called the Croats Ustaa, major Croatian figures and politicians adopted
Ustaa slogans and emblems. The result was to resurrect both the etniks
and the Ustaa 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 Longinovis
critique of the use of the vampire trope in regard to events in the Balkans
in the 1990s (Longinovi 2011) and the stunningly effective, innovative
invocation of exactly that trope in Tea Obrechts novel The Tigers Wife
(Obrecht 2011), the image of vampires being unstaked seems to capture
this process perfectly. Socialist Yugoslavia had buried any positive images
of etniks and Ustaa 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 etniks and Ustaa
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 199192 or as I write in early 2012.
Part II offers understandings of the processes of mass violence that
took place during the 199195 wars. These conflicts introduced the term
ethnic cleansing into the international lexicon, a literal translation of
the Serbo-Croatian etniko ienje, 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 199091, 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 Yugoslavias 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 Gods
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
200809 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 200809. 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
1Full disclosure: I served as an expert witness in the very first case in the ICTY (Duko
Tadi), 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 Bosnias 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 Joe Mencinger, a political actor
in Slovenias secession from Yugoslavia and accession to the EU, has sug-
gested that the EU in 201112 resembles the Yugoslav federation ca. 1983,
xviii introduction
eight years before the latter collapsed; others have noted that Slovenias
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, Pennsylvania
April 2012
References
Baki-Hayden, M. (1996). Nesting Orientalisms: The Case of Former Yugoslavia. Slavic
Review 54: 917931.
Guardiancich, I. (2012). The Uncertain Future of Slovenian Exceptionalism. East Euro-
pean Politics and Societies 26(2): 380399.
Longinovi, 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 Tigers 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 Reynoldss pic-
ture of the Infant Samuel. But...to hear Balkan-fanciers
talk about each others Infant Samuel was to think of
some painter not at all like Sir Joshua Reynolds, say
Hieronymous Bosch.
Rebecca West (1982 [194041]: 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 worlds terrorists and other
undesirable mercenaries. At various times, each asserted that the others
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,
1Some 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 194145, 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
2Vreme, 2 September 1991: 1415.
3Government 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): 1726, Andrejevich, M. and G. Bardos (1992), The Media in Regions of Conflict: Ser-
bia and Montenegro RFE/RL Report on Eastern Europe: 8691. 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 BBCs Misha Glenny and
American National Public Radios Sylvia Poggioli, did not do a much better job, as acknowl-
edged by Poggioli, S. (1993), Scouts without Compasses, Nieman Reports: 1619.
4For those not familiar with Titos 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 etniks and the
Croat Ustaa. 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
5See Said, E. (1979) Orientalism. New York, Vintage; Baki-Hayden, M. and R. M. Hayden
(1992) Orientalist Variations on the Theme Balkans: Slavic Review 51(1): 115; Todorova,
M. (2005). The Trap of Backwardness: Modernity, Temporality, and the Study of Eastern
European Nationalism, Slavic Review 64(1): 140164.
6Hammel, E. A. (1993) Demography and the origins of the Yugoslav civil war, Anthro-
pology Today 9: 49; Hammel, E. A. (1993) The Yugoslav Labyrinth, Anthropology of East
Europe Review 11: 3947.
6 chapter one
imposed or endogenously shaped in response to exogenous pressures.7
This assessment holds true today, as will be seen.
etniks and Ustaas:
The Structural Opposition of Serb and Croat Fascists
The Serb etniks and Croat Ustaa were the prototypes of extreme nation-
alism during the wars in Yugoslavia of 194145. 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 194143 the etniks under
General Draa Mihailovi 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 Ustaas, 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 etniks and Ustaa 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
7Hammel, E. A. (1993) The Yugoslav Labyrinth, Anthropology of East Europe Review
11: 3947.
8Sternhell, Z. (1986) Neither Right nor Left: Fascist Ideology in France, Berkeley, Univer-
sity of California Press. Aleksa Djilas has argued that the Ustaa 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
Ustaas adopted methods of struggle and rule that resembled those of the Nazis; see Djilas,
A. (1991) The contested country: Yugoslav unity and communist revolution, 19191953, Cam-
bridge, Mass., Harvard University Press. This adoption of violent means to achieve nation-
alist goals brings the Ustaa movement close to Sternhells view of fascism.
9Djilas, A. (1991) The contested country: Yugoslav unity and communist revolution,
19191953. 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 Starevi, regarded them as
the best Croats, and the Ustaas termed Muslims, in Ivo Banacs 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 etniks and Ustaa 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 etniks and Ustaa marked the members of the two
groups more than did their uniforms. etniks cultivated large beards and
long, flowing hair, while the Ustaas were clean-cut. In part, the Ustaas
resembled their mentors, the Nazis, while the etniks invoked images
of the hajduks, hill bandits famed for their opposition to the Ottoman
10It 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), Yugoslavias Muslim Nation, Hanover, NH,
American Universities Field Staff; Burg, S. L. (1983), The Political Integration of Yugoslavias
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: 141146). 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.
11Banac, I. (1983) The National Question in Yugoslavia: Origins, History, Politics Ithaca,
NY, Cornell University Press. The Starevi and later Ustaa ideologies regarding Muslims
and Serbs were confusing and not necessarily consistent. Starevi 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: 363364). The Ustaa 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 etniks and
Ustaas 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 199293 would not be had
they read the reports of what happened there and in Croatia from 194145.
The major difference was that while in the 1940s Serbs were the primary
victims and Croats and Muslims the primary victimizers, in 199293 Mus-
lims were the primary victims and Serbs and Croats the victimizers. As in
199293, 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
Ustaa and etniks 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 Generals 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 etniks and Ustaas 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 migr Serb and Croat communities,
it was clearly worthwhile for the Yugoslav government to portray the
etniks and Ustaas 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 migr communities, more tensions often existed between Serbs
and Croats than were manifested in Yugoslavia itself. While external
etniks and Ustaas 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
12Aarons, M. and J. Loftus (1991) Ratlines. London, Mandarin.
national stereotypes in the wars in yugoslavia 9
opposition to the Yugoslav state, the migr nationalists retained the ele-
ments of their structural opposition to each other.
Coexistence and Intermingling, 19451990
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
13Petrovi, R. (1992) The National Composition of Yugoslavias Population. Yugoslav
Survey 1992(1).
14Ibid., p. 9.
15Petrovi, R. (1987) Migracije u Jugoslaviji i etniki aspeckt. Beograd, Istraivako-
izdavaki centar SSO Srbije.
16Petrovi, R. (1992) The National Composition of Yugolsavias 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
17Vreme, 11 March 1991: 31.
18The 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: 2734.
19Borba, 30 Sept. 1991: 11.
20Ibid.
21Ibid.
22Burg, S. L. and M. Berbaum (1989) Community, Integration and Stability in Multina-
tional Yugoslavia, American Political Science Review 83: 535554.
23Petrovi, R. (1987). Migracije u Jugoslaviji i etniki aspeckt. Beograd, Istraivako-
izdavaki 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 iber 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 iber 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 etniks and Ustaas
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 Miloevi came to power in Serbia, and he was able to build
24Petrovi, R. (1992) The National Composition of Yugolsavias Population. Yugoslav
Survey 1992(1).
25Danas, 6 August 1991: 21.
26Feral Tribune, 11 January 1994.
27See, flagrantly e.g., Banac, I. (1992). The Fearful Asymmetry of War: The Causes and
Consequences of Yugoslavias Demise. Daedalus 121: 141174.
28Slovenia, 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., Menari, 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 Miloevi 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 Miloevi was the first dissident
politician in Yugoslavia. Further, Miloevis 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 Croatias 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
29As 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.
30See p. 78 in Djuki, S. (1992) Kako se dogodio narod. Beograd.
31See Menari, S. (1986) Bosanci. Ljubljana.
32Hayden, R. M. (1992) Constitutional Nationalism in the Formerly Yugoslav Repub-
lics. Slavic Review 51(4): 654673.
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 199293.36
In a context of rising nationalist hostility, the previous history of the
etniks and Ustaa 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 Ustaa
33Markotich, S. (1993) The Situation of Serbs in Croatia. RFE/RL Report on Eastern
Europe: 30.
34My reference to the Memorandum is to the version published in a special edition
of Duga, June 1989.
35Globus, 18 June 1993: 2, 910.
36Hayden, R. M. (1993) The Partition of Bosnia and Herzegovina, 199093. RFE/RL
Report on Eastern Europe 2(22): 114.
37Trickovic, 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 etniks.
The inflammatory nature of the Serb and Croat portrayals of each other
as Ustaas and etniks received credibility by the adoption of Ustaa and
etnik 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
etnik Movement (Velika Srbija: Novine Srpskog etnikog 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 Momilo
Djuji, widely regarded as a etnik war criminal, proclaiming the leader of
the Serbian etnik Movement, Dr. Vojislav eelj, to be a etnik Vojvoda,
the highest military rank in the Serbian army in World War I, adopted
by the etniks of World War II as their highest rank. The third issue carried
a etnik deaths-head flag on its cover, again a reversion to the 1940s. By
this time, etnik insignia and symbols were being openly sold in Belgrade,
and street singers were singing etnik songs that had been banned for
more than forty years. Less than a year later, a etnik gathering attracted
people who wore the clothes and long hair of the 1940s etniks, displayed
the deaths-heads flags, and waved the knives that the earlier etniks 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 Ustaa
uniforms, which was much reproduced in Serbia.40 At the same time,
Ustaa paraphernalia came to be sold as openly in Croatia as etnik mate-
rial in Belgrade.
In the increasingly tense political climate of 199091, the invocation of
etnik and Ustaa images was inherently loaded. In Croatia, the newly
formed Croatian Democratic Union of Dr. Franjo Tudjman maintained an
38For examples of the most inflammatory, see Banac, I. (1992) The Fearful Asymmetry
of War: The Causes and Consequences of Yugoslavias Demise. Daedalus 121: 141174.
39Vreme, 20 May 1991: cover story.
40See, e.g. Dadi, P. (1991) Nova ustaka drava. Beograd.
national stereotypes in the wars in yugoslavia 15
uneasy relationship to the former Croatian state. Tudjman never praised
the Ustaa; 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
Tudjmans motives may have been primarily based on the need to please
his migr 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. Tudjmans 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 Yugoslavias descent into war.43
As tensions rose in the last months before the war began, in the winter
and spring of 1991, the terms etnik and Ustaa 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. etniks under Vojvoda eelj attacked Croatian
towns in 1991 and Bosnian ones in 1992. Self-identified Ustaas attacked
Serb towns in Croatia in 1991 and in Bosnia in 1992. In a real sense, the
images of 194145 provided the role model and justification for atrocities
by these forces.
This is not to say that the specifics of the etnik and Ustaa identities
remained exactly what they were fifty years earlier. Despite their invoca-
tion of earlier movements, the actual identifying symbols of the etniks
and Ustaa of the 1990s were different from those of the 1940s. Most of
the new etniks did not wear long hair; indeed, Vojvoda eelj was as
clean shaven as any Ustaa.44 Neither did the neo-Ustaa wear uniforms
like those of the 1940s. However, the conscious invocation of their fascist
predecessors was the symbolic act of supreme significance.
41Denich, B. (1994) Dismembering Yugoslavia: Nationalist Ideology and the Symbolic
Revival of Genocide, American Ethnologist 21: 367390.
42In 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 194145.
43Glenny, M. (1992) The Fall of Yugoslavia. London, Penguin.
44The writer Vuk Drakovi, with eelj one of the founders of the renewed etnik
movement, did have the hair for the role. After splitting with the Vojvoda, however,
Drakovi 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.
45Mazowiecki, T. (1993). Situation of Human Rights in the Territory of the former Yugo-
slavia: Fifth Periodic Report. Geneva, United Nations Commission on Human Rights.
46The 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: Crkveni, I. and M. Klemeni (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 etniks and Ustaas from horror story to horrible
reality took place within a wider context of symbolic divisions within
47Hayden, R. M. (1993) The Partition of Bosnia and Herzegovina, 199093, RFE/RL
Report on Eastern Europe 2(22): 114.
48The description by Chandra et al. (pp. 428429) 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) Indias 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
Hammels 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
Baki-Hayden (1993), Maria Todorova (1993 and 1994) and Tomislav
Longinovi (1993), and an earlier paper that I co-authored (Baki-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 Baki-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.
49Hammel, E. A. (1993) Demography and the origins of the Yugoslav civil war. Anthro-
pology Today 9: 49.
50All 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 junjaki
(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; Bosnias 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.
51See, 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 Izetbegovis (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. Izetbegovi 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 Bosnias 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. 28, on the dangers of foreign
52Ibid.
53Huntington, S. P. (1993) The Clash of Civilizations. Foreign Affairs 72: 2249.
54Izetbegovi, A. (1992) Opening Statement Delivered at the London Conference on
the Former Yugoslavia.
55The Federalist papers, written by Alexander Hamilton, John Jay and James Madison
in 178788 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. Hamiltons 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 Communitys 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 194145.
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 Serbias 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.
56See Hayden, R. M. (1992) Yugoslavias Collapse: National Suicide with Foreign Assis-
tance. Economic & Political Weekly: 13771382.
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 ones movement, and even international recognition. Here the con-
cept of self-determination, so often invoked in Yugoslavia from 198991,
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.
57Huntington, S. P. (1993) The Clash of Civilizations. Foreign Affairs 72: 2249.
national stereotypes in the wars in yugoslavia 23
References
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: 8691.
Baki-Hayden, M. and R. M. Hayden (1992). Orientalist Variations on the Theme Bal-
kans:. Slavic Review 51(1): 115.
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-
lavias Demise. Daedalus 121: 141174.
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: 2734.
Burg, S. L. (1983). The Political Integration of Yugoslavias 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: 535554.
Chandra, B., K. M. Panikkar, et al. (1989). Indias Struggle for Indepemdemce. Delhi,
Penguin.
Crkveni, I. and M. Klemeni (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: 367390.
Djilas, A. (1991). The contested country: Yugoslav unity and communist revolution, 19191953.
Cambridge, Mass., Harvard University Press.
Djuki, S. (1992). Kako se dogodio narod. Beograd.
Dadi, P. (1991). Nova ustaka drava. 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: 49.
(1993). The Yugoslav Labyrinth. Anthropology of East Europe Review 11: 3947.
Hayden, R. M. (1991). Yugoslavia: Politics and the Media. RFE/RL Report on Eastern Europe
2(49): 1726.
(1992). Constitutional Nationalism in the Formerly Yugoslav Republics. Slavic
Review 51(4): 654673.
(1992). Yugoslavias Collapse: National Suicie with Foreign Assistance. Economic &
Political Weekly: 13771382.
(1993). The Partition of Bosnia and Herzegovina, 199093. RFE/RL Report on Eastern
Europe 2(22): 114.
Huntington, S. P. (1993). The Clash of Civilizations. Foreign Affairs 72: 2249.
Izetbegovi, A. (1992). Opening Statement Delivered at the London Conference on the
Former Yugoslavia.
Karger, A. (1992). Die Serbischen Siedlungraume in Kroatien. Osteuropa 42: 141146.
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
Europe: 30.
Mazowiecki, T. (1993). Situation of Human Rights in the Territory of the former Yugosla-
via: Fifth Periodic Report. Geneva, United Nations Commission on Human Rights.
Menari, S. (1986). Bosanci. Ljubljana.
Petrovi, R. (1987). Migracije u Jugoslaviji i etniki aspeckt. Beograd, Istraivako-izdavaki
centar SSO Srbije.
(1992). The National Composition of Yugolsavias Population. Yugoslav Survey
1992(1).
24 chapter one
Poggioli, S. (1993). Scouts without Compasses. Nieman Reports: 1619.
Rusinow, D. I. (1982). Yugoslavias Muslim Nation. Hanover, NH, American Universities
Field Staff.
Said, E. (1979). Orientalism. New York, Vintage.
Sternhell, Z. (1986). Neither Right nor Left: Fascist Ideology in France. Berkeley, University
of California Press.
Todorova, M. (2005). The Trap of Backwardness: Modernity, Temporality, and the Study
of Eastern European Nationalism. Slavic Review 64(1): 140164.
Trickovic, D. (1993). Yugoslavia and the Rise of Volkgeist. The Curtain Rises: Rethinking
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 (19201941) 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 (19451990), 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 198990, and then the election
of openly nationalist(ic) non-communist parties in the elections of 1990.3
1Since 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.
2The history of the period 194145 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. Djilass Wartime (1977), a book that has the cachet of having
been banned, along with Djilass other works, by the communist regimes in Yugoslavia
until 1989.
3This 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 partys 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.
4One 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 198990 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: 56). 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. (etinc 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.
5While 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).
28 chapter two
Undermining the Myth of the Infallible Party: 198287
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 LCYs
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., Miri 1984),
and which was one of the countrys 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 Titos 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 countrys 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
6The sources on Yugoslav self-management are truly vast. The single best introduction
to the study is Rusinows The Yugoslav Experiment (1978).
7Otac na slubenom putu [When Father was away on Business].
recounting the dead 29
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 (Drakovi 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: 3337), 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 LCYs 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 audiences 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
8Srena nova godina, 1949 [Happy New Year, 1949].
9Bal na vodi (released in the United States as Hey Babu Riba).
30 chapter two
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 Yugoslavias 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
10The Soviet Georgian film Repentance may stand as emblematic of this use of film as
commemorative ceremony. While regarded internationally as an allegory of Stalins 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).
11Of 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.
12In 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 Baki-Hayden
and Hayden (1992).
recounting the dead 31
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
Miloevi, 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 Djuki 1992; avoki 1991).
Miloevi thus accomplished a Ceauescu-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 (Tadi 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
13Srdjan Karanovis 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.
32 chapter two
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. Miloevi, 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 Facultys 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, Miloevi 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, Miloevi was able
to stage a coup within the one-party system, replacing a traditional inter-
nationally-oriented communist government with a nationalistic one and
14The ban on Anali Pravnog Fakulteta u Beogradu no. 3 (MayJune) 1971 was lifted in
1990, and the issue was reprinted.
15See Intervju (Beograd), Potapanje Srbije. Special issue, 11 August 1989.
recounting the dead 33
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 Miloevi carried this process out first, he was merely a forerunner
for the total collapse of Yugoslav politics into nationalistic antagonisms,
which took place in 199091.
Counting the Bodies, 199091
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 199091. 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 194145, 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 Drava
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 Titos 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
Ustaa, the Croatian fascists who ran the NDH. In the political milieu of
1990 Yugoslavia, the first revision was actually not controversial in itself,
34 chapter two
but the second has incited a vehement response from Serbs, who have
rediscovered Ustaa 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 Ustaa and the Serbian royalists, or etniks17 during World
War Two. The Ustaa 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 198990. However, there had always been stories within
Yugoslavia of Partisan massacres of Ustaas and etniks at the end of the
war. These stories were in fact published in Yugoslav migr circles after
the war, but such publications could not be brought into Yugoslavia or
openly mentioned, much less discussed, within the country. Further, the
migr 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 Ustaa, etniks,
16One 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 Ustaas crimes,
in the name of promoting the communist goal of brotherhood and unity. Serbs assert a
cover-up, Croats deny it.
17etniks were the Serbian royalist forces during the civil war of 194145, and vehe-
ment opponents of the Ustaa regime.
18A concise discussion of the Ustaa, their ideology and their genocidal practices can
be found in A. Djilas (1991: 103128).
19Milovan 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
recounting the dead 35
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 Tolstoys 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: 130207). 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 mi-
gr journals and newspapers, but had not received the wide international
publicity and credibility that Tolstoys 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 Ustaa. The transformation of the communist mas-
sacres from secret history to public knowledge was dependent on political
changes within Yugoslavia. First, in January 1990 Titos communist party,
the League of Communists of Yugoslavia, self-destructed in bickering
Montenegrin poet-prince Njego 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 Ustaa could not be written off as Croatian
nationalist propaganda.
36 chapter two
between the Leagues of Communists of Serbia, Croatia and Slovenia at
the partys last (and aptly named, extraordinary) congress national-
ism was replacing class struggle within each of these parties (see Rusinow
1991: 56). 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 MayJune 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., anko and oli
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 (anko and oli
1990: 2432). 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
20With the reservations mentioned in note 3.
21Danas 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 anko and oli was published by the
publishing house of the largest daily newspaper in Croatia, Vjesnik, and was sold in that
papers kiosks throughout Yugoslavia.
recounting the dead 37
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 doesnt reduce the sincerity of our intentions today (anko
and oli 1990: 9495).
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, 194145
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 Ustaa. 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 Ustaa
may have been inflated (see discussion in A. Djilas 1991: 125127). 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
22On the other hand, many such challenges were made outside of Yugoslavia among
Croatian migr 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.
38 chapter two
great controversy in Yugoslavia. The central figure in the argument was
Dr. Franjo Tudjman, one of Titos Partisans during the war, later one of
Titos 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 MayJune 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: 79101).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 historys brutal actors,
and there was nothing particularly noteworthy, or blameworthy, about
the Croatian genocide of 194145.
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 Ustaa 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.
23Tudjman 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: 147158).
recounting the dead 39
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 Ustaa
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 Ustaas, 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 Ustaa
policy. Croats who offered widespread resistance to the Ustaa regime were
victims too. Any assessment of the Ustaa 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, Ustaism, with all its characteristics and consequences, was not
genetically Croat, but was the product of specific historical circumstances
(Boban 1990: 588589).
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 Tudjmans do not take into account the massacres of Serbs that took
place outside of the concentration camps, in Ustaa raids on Serbian vil-
lages; and most Serbian victims probably died in those raids (A. Djilas
1991: 121124; 125126). Moreover, for Serbs, Jasenovac has become a
metonym for the entire Ustaa 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 Ustaa 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 Rakovi 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. Rakovi, a relatively
moderate leader of Croatias Serbs in a political milieu in which there are
no true moderates, analyzed the politics of Dr. Tudjmans government in
the following terms:
[The Croatian leadership] underestimated the importance of the genocide
of the Croatian Ustaa in Serb-Croat relations. Thinking that would attempt
to minimize and hide genocide, and thereby to establish an image that
40 chapter two
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 Croatias Serbs,
who remember very well the massacres of their people in 194145. Thus,
the new Croatian history may force those experiences into hiding, trans-
forming them into secret histories.
Restating Croatian Genocide: Uncovering More Ustaa Massacres
In reaction to the rapid development of the new Croatian history,
Miloevis 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, Belgrades Politika, ran a long series of stories on atroci-
ties committed by the Ustaa 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 Ustaa 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 Ustaa.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
24I 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-Miloevi) 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 Ustaa and the reality of their genocidal
campaign.
The discovery of Ustaa 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 Ustaa
genocide, whose bones were recently removed from ten caves in Herze-
govina (BECT 80 [31 July 1991]).25 Radio Belgrades 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 Ustaa 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
Ustaa 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
Ustaa 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
25BECT 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 authors files.
42 chapter two
two regimes intensified. Belgrades leading papers, Politika and the others
of its publishing house, which had been taken over by Miloevi in 1987
(see Hayden 1991), ran jingoistic accounts in which Croatian forces were
Ustaa and the Croatian government Ustaa or Fascist. The major
Croatian paper, Vjesnik, referred to Serbian fighters as etniks 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 governments 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: 1617). 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 Ustaa 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 Ustaa 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 Tudjmans 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 Ustaa 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 governments 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.
26Similar 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
MarchApril 1992 (see Bogosavljevi 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 Ustaa 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
27These 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 194145. 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 199192 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
28Compare 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 194145, 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.
Baki-Hayden, Milica and Robert Hayden (1992). Orientalist Variations on the
Theme Balkans: Symbolic Geography in Yugoslav Politics, 198790. 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: 580592.
Christensen, Julie (1991). Tengiz Abuladzes Repentance and the Georgian Nationalist
Cause. Slavic Review 50: 163175.
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.
Drakovi, 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: 835865.
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: 1726. 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.
Hribar, Tine (1989). Slovenska dravnost. Ljubljana: Cankarjeva zaloba.
Jelavich, Charles (1990). South Slavic Nationalisms: Textbooks and Yugoslav Union before
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: 393438.
Miri, Jovan (1984). Sistem i kriza. Zagreb: Cekade.
Ramet, Sabrina (1991). Serbias Slobodan Miloevi: A Profile. Orbis, Winter 1991: 93105.
Roeder, Philip (1991). Soviet Federalism and Ethnic Mobilization. World Politics 43: 196232.
Rupel, Dimitrij (1990). Od vojnog do civilnog drutva. Zagreb: Globus.
Rusinow, Dennison (1978). The Yugoslav Experiment, 19481974. Berkeley: University of
California Press.
(ed.) (1988). Yugoslavia: A Fractured Federalism. Washington, DC: The Wilson
Center.
(1991). To Be or Not to Be: Yugoslavia as Hamlet. University Field Staff Interna-
tional, Field Staff Report (Europe) 199091: no. 18.
etinc, Mile (1990). Da li je gradjanski rat u Sloveniji zavren? Demokratija (Beograd)
1(1011): 17 (3 August 1990).
Szporluk, Roman (1988). Communism and Nationalism: Karl Marx versus Friedrich List.
Oxford: Oxford University Press.
recounting the dead 47
Tadi, Ljubomir (1988). Kominterna i nacionalno pitanje Jugoslavije. Knjievne Novine
760 (15 September 1988): 1,5.
Tolstoy, Nikolai (1986). The Minister and the Massacres. London: Century Hutchinson.
Tudjman, Franjo (1990). Bespua 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: 267305.
anko, elimir and Nikola oli (1990). Jazovka. Zagreb: Vjesnik.
CHAPTER THREE
THE PARTITION OF BOSNIA AND HERZEGOVINA, 199093*
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
*Authors 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).
1Since 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.
2Such a loss of control need not be fatal to state continuity. However, the Arbitration
Committee of the ECs 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
50 chapter three
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 199293
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. 1920). 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 nations 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 partys 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) 37.8
Serbs 31.3 Serbian Democratic Party (SDS) 26.5
Croats 17.5 Croatian Democratic Union (HDZ) 14.7
Non-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, 19891992, 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.
3See Duan Janji, Gradjanski rat u Bosni i Hercegovini: Opte karakteristike i uzroci
sukoba i rata, in Srdjan Bogosavljevi et al., Bosna i Hercegovina izmedju rata i mira
(Beograd and Sarajevo: Forum za etnike odnose, 1992), pp. 7685. To be sure, the leader
of the HDZ in Bosnia and Herzegovina, Stjepan Kljuji, 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 domaih i medjunarodnih aktera bosanskohercegovake drame, in Bosna
i Hercegovina izmedju rata i mira, p. 102). He was dismissed by Mate Boban, who said that
Kljuji 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 (Janji, 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 Kljuji. 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.
52 chapter three
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
4Janji, Gradjanski rat, p. 80.
5Ibid., 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. 188189) 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 Samardi, Dilemma of Federalism in Yugosla-
via Problem of Sovereignty in a Multinational Federation, Praxis International 11(3),
pp. 377386. 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 (opine)
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, 199192
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
6See Vladimir Goati, Politiki ivot Bosne i Hercegovine 1989 1992, in Bosna i Herce-
govina izmedju rata i mira, pp. 4849. The ethnonational division of the supposedly trina-
tional central government of B&H was apparent in 199293 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. Senates Foreign Relations Committee saying that both the Foreign
Minister and the President of B&H, Alija Izetbegovi, 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.
7Despite 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. 654673 [1992]).
54 chapter three
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
8The 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: 89).
the partition of bosnia and herzegovina 55
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
Presidencys 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
9It is often asserted that the ECs 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.
10Thus, by the logic of the Badinter Committees 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.
56 chapter three
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 ECs 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 ECs
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 ECs 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
11The document is printed in Borba, 29 Feb.1 March 1992, p. 4.
12Borba, 19 March 1992, p. 2.
13See 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).
14Borba, 25 March 1992, p. 2.
15Borba, 26 March 1992, p. 2.
the partition of bosnia and herzegovina 57
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 Izetbegovi, 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
16Figures on control over land and populations remaining outside of regions controlled
by their own nation are from Vreme, 23 March 1992, p. 7.
17Borba, 1 April 1992, p. 1.
18Borba, 2 April 1992, p. 2.
19Borba, 2 April 1992, p. 2.
20See Paul Shoup, Uloga domaih i medjunarodnih aktera, pp. 103105. 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.
58 chapter three
induced their formal secession from it. By the time the ECs 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 ECs 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 Gorade,
21Borba, 13 April 1993, p. 1.
22Borba, 910 May 1992, p. 9.
the partition of bosnia and herzegovina 59
Srebrenica and Viegrad, 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 opine of Zavidovii and
Banovii, 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 opina 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.
23Documentation 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
60 chapter three
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.
24International Conference on the Former Yugoslavia, document STC/2/2, 27 October
1992.
the partition of bosnia and herzegovina 61
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
25Ibid., p. 4. The parties were, of course, respectively the Muslims, Serbs and Croats.
26Ibid., 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.
27Ibid., p. 5. This assessment explains why many of the putative citizens of B&H
reject it.
28Ibid., p. 5.
29Art. II.A.
62 chapter three
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
30Art. V.A.2.
31Art. II.B.
32Art. II.D.
33Arts. V.B.1 and V.B.2.
34Ustavni principi za Bosnu i Hercegovinu, art. 5, as printed in Borba, 7 Jan. 1993,
p. 20.
35Art. I.B.4.
the partition of bosnia and herzegovina 63
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
ECs 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 Foa 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
36Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third
World (Cambridge University Press, 1990).
37Art. I.B.1.
64 chapter three
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 Biha 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 opina boundaries, apparently with the intent of
inducing transfers of populations in those opine 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
38Borba, 7 January 1993, p. 15.
39See New York Times, 1 February 1993; New York Times, 8 February 1993, p. 8; The
Economist, 23 January 1993, p. 45.
40RFE/RL Daily Report no. 65 (April 5, 1993).
the partition of bosnia and herzegovina 65
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.
41Proposed 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.
42Document on the temporary governmental structure in B&H, published in Borba,
4 February 1993, p. 8.
66 chapter three
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 ECs 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 governments 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 Croatias 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.
the partition of bosnia and herzegovina 67
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 Owens 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
43New York Times, 3 April 1993, p. 1.
44Of course, this realization of their worst fears may well be yet another example of
the self-fulfilling prophecies that Slobodan Miloevis politics have brought on the Serbs
since 1987.
68 chapter three
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. Yugoslavias 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
45Hayden, Constitutional Nationalism in the Formerly Yugoslav Republics.
the partition of bosnia and herzegovina 69
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 Britains 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
46The 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).
70 chapter three
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 desire
And make them again citizens of paradise.
April 23, 1993
47Rebecca 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 Andri, 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 Izetbegovi, 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 Biha, 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 prisoners 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
72 chapter four
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,
1Tanley Tambiah, Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy, (Chi-
cago: University of Chicago Press, 1986), p. 5.
2I am quoting Milorad Pupovac, leader of the moderate Serbs who have remained in
Tudjmans 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.
muslims as

others

in serbian and croatian politics 73

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 writers 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
3The 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 Izetbegovics 1980 call for the Islamization of Muslims in his The
Islamic Declaration, (Sarajevo: no publisher, 1990).
4Milica Baki-Hayden, Orientalist Variations on the Theme Balkans: Symbolic Geog-
raphy in Recent Yugoslav Cultural Politics, Slavic Review, 51 (1992), 115. See also Milica
Baki-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),
453482.
5Baki-Hayden, Nesting Orientalisms.
6Samuel Huntingtons recent juxtaposition of the West versus the rest in his The
Clash of Civilizations? in Foreign Affairs, 72: 3 (1993), 2749, 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 Huntingtons 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), 124.
74 chapter four
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 Izetbegovi] and his followers from those of the
European-oriented Christians, even if they [Serbs] are on the margins of
civilization.8
Izetbegovis 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 ones 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 Drago Kalaji,
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
7Ibid., p. 6.
8Slobodan Lovrenovi, Danas (11 August 1993), 22.
9The 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), 7791).
10Baki-Hayden Nesting Orientalisms. See references to Borba 67 (August 1994),
xviixix.
muslims as

others

in serbian and croatian politics 75

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,
11Ivo Banac, The National Question in Yugoslavia (Ithaca, N.Y.: Cornell University Press,
1984).
12These 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 Izetbegovi,
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
doesnt have Bosnia [Jebe zemlju koja Bosne nema].
13M. Baki-Hayden, Nesting Orientalisms. See references to Biljana Plavi, 1991,
quoted on p. 19.
76 chapter four
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
Nehrus 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 Indias Muslims, rejected Nehrus category of Indians for them, for-
mulating and then implementing the two nation theory, which held
that Indias Muslims were a separate people from its Hindus. Strategically,
the assertion of essential difference was as crucial to Jinnahs demands
for partition as was the assertion of essential unity for Nehrus 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 Jinnahs success has had the effect of rendering
Indias 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,
14Jawaharlal Nehru, The Discovery of India (New York: John Day, 1946).
15Ashutosh Varshney, Contested Meanings: Indias National Identity, Hindu National-
ism, and the Politics of Anxiety, Daedalus, 122 (1993), 227261.
16Note 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.
muslims as

others

in serbian and croatian politics 77

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 Jinnahs 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 Jinnahs 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 Bosnias people, just as Nehru posited Indians as an encompassing
17Eugene Hammel, Demography and the Origins of the Yugoslav War, Anthropology
Today 9 (1993), 49.
78 chapter four
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 (bonjak). However, where
bosanac could refer to anyone from Bosnia, bonjak now has an exclu-
sively Muslim referent. Bosniac (bonjak) 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.
18I am grateful to Zoran Paji, formerly Professor of Law at Sarajevo University, for
reminding me of this point.
muslims as

others

in serbian and croatian politics 79

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 Biha region to force a
fez onto his captives 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-Herzegovina19 is perfectly correct. The problem is
that it is precisely their Muslim identity that marks the Bonjaci as non-
European, and hence, in Serb and Croat rhetorics, inferior.
19Lijljan, (February 815, 1995, p. 7), as quoted and translated by FBIS, (February 13,
1995).
80 chapter four
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 latters 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,
muslims as

others

in serbian and croatian politics 81

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, Im 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 Karadi, 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
1The 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.
2Attempts 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-
slavias collapse and subsequent wars, by Yugoslav politicians and by those on the world
stage who have had to deal with them (see Baki-Hayden and Hayden 1992, Todorova
1994, Baki-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.
84 chapter five
logic of the wars of the Yugoslav secessions and succession, particularly
the fatal incompatibility of the objectified or reified cultures (cf. Handler
1988: 1416, 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
imagined communities and real victims 85
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 Nandys 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
Herzfelds (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
3While 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.
86 chapter five
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: 427449). 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
imagined communities and real victims 87
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: 2729; Verdery
1991: 1920), 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 todays 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.
88 chapter five
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
Baki-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
imagined communities and real victims 89
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% (Petrovi 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 (Petrovi 1992: 9).
The political geography of the country reflected these territorial con-
centrations. The Socialist Federal Republic of Yugoslavia (19451991/92)
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.
4In Serbia, the socialist leader Slobodan Miloevi, a communist until earlier in the
year, accomplished a Ceauescu-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.
90 chapter five
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 secession5 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 Andersons evocative phrase (1983), the disintegration
5Constitution of the Socialist Federal Republic of Yugoslavia, 1974, Introductory Part,
Basic Principles.
imagined communities and real victims 91
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 (Petrovi 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 (Petrovi 1992: 9). Nor
was Slovenia unusual in this regard. From 1953 until 1981, almost all of
the territories of Yugoslavia became increasingly heterogeneous (Petrovi
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
6B&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 Petrovi 1987: 47 n. 19).
92 chapter five
and 1991, heterogeneity increased in Montenegro, Macedonia, Slovenia
and Serbia but decreased in Croatia7 and B&H (Petrovi 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 194145.9 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
7The 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 (Petrovi 1992: 7).
8I 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 iber 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).
9The 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 Haydens comments on Boban by a second Croat writer
(Kneevi 1993a; and reply by Hayden, forthcoming).
imagined communities and real victims 93
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 (Petrovi 1987: 152153; 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 peoples 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], Jambrei 1993 [Banija]).10
10The transformation of the people of a mixed Muslim-Croat village from neighbors
of different faiths into enemies of different nationalities is seen in Tone Bringas stun-
ning ethnographic film, Bosnia: We Are All Neighbors, broadcast in America on PBS in
May 1994.
94 chapter five
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
Petrovi 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.
11Some 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.
imagined communities and real victims 95
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
12In 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.,
Kneevi 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 Miloevi 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.
96 chapter five
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: 658663).
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 (Samardi 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
13To 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.
imagined communities and real victims 97
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 nations] 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
98 chapter five
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,
14The 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.
15Amendment LX to the Constitution of the Socialist Republic of Bosnia and Herzegov-
ina, Slubeni List Socijalistike Republike Bosne i Hercegovine 46 (no. 21, 31 July 1990): 499.
imagined communities and real victims 99
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 Bonjak, 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
16The 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).
17Constitution 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.
100 chapter five
Constitution excludes Serbs from the structure of the Federation, appor-
tioning executive offices to Muslims/Bosniacs and Croats (IV.B.1. arts.
25) 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 Drakuli [1993: 5354], 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.
imagined communities and real victims 101
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: 2628). Although the Croatian authorities have denied discriminat-
ing against the Serbs, relatively large numbers of requests for citizenship
102 chapter five
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.
18As 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: 1617) and the general pressure on minorities in that country (see Mazow-
iecki 1992: 2736; 1993: 3242), indicate that the situation there is likely to be manipulated
in order to discriminate against non-Serbs.
19Zakon o hrvatskom dravljanstvu, Narodne Novine 1991 # 53: 14661469; amended in
Narodne Novine 1992 # 28: 659.
imagined communities and real victims 103
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: 78). 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,
14. 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 drafters pen. This provision
provides a tool for extending citizenship only to ethnic Croats (e.g., the
child of Croat migrs from Croatia or of ethnic Croats from Serbia) while
20Stolcke (1995) distinguishes cultural fundamentalism from racism, but she consid-
ers only the political rhetoric surrounding immigration, not that linking migrs 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.
104 chapter five
denying it to others similarly situated (e.g., the child of Serb migrs 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 doesnt 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
21Again it is necessary to state that the situation in regard to the determination of
Serbian citizenship is no different (Mazowiecki 1993a: 2627). 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.
22See, e.g., Mazowieckis reports, cited earlier, as well as those of Helsinki Watch and
Amnesty International.
imagined communities and real victims 105
course in central Bosnia (Mazowiecki 1993: 810; 1994a: 6) and Mostar
(Mazowiecki 1993a). Population exchanges have been part of this effort
(Mazowiecki 1994a: 910).
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. 1994Jan. 1995: 5):
1991 Census Nov. 1994 Estimate
Croat-Muslim Federation
Serbs 205,185
Muslims & Croats 1,209,804
36,000
1,673,000
Serb-Held Territories
Serbs 928,857
Muslims & Croats 838,190
1,169,000
73,000
Eastern Enclaves
Serbs 20,000
Muslims 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: 811). 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.
106 chapter five
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
imagined communities and real victims 107
Jews were eliminated (one way or another) from Poland in the period
193946. 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
Polands 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, Croatias 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 Gramscis 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.
References
Anderson, Benedict (1983). Imagined Communities: Reflections on the Origin and Spread of
Nationalism. London: Verso.
(1992). Long-Distance Nationalism: World Capitalism and the Rise of Identifying
Politics. Ms.
Appadurai, Arjun (1991). Global Ethnoscapes: Notes and Queries for a Transnational
Anthropology. In R. Fox, ed., Recapturing Anthropology: Working in the Present. Santa
Fe: School of American Research Press.
Baki-Hayden, Milica (1995). Nesting Orientalisms: the Case of Former Yugoslavia. Slavic
Review 54: 917931.
Baki-Hayden, Milica and Robert Hayden (1992). Orientalist Variations on the Theme
Balkans: Symbolic Geography in Recent Yugoslav Cultural Politics. Slavic Review
51: 115.
Banac, Ivo (1984). The National Question in Yugoslavia: Origins, History, Politics. Ithaca: Cor-
nell University Press.
Basch, Linda, Nina Glick Schiller and Cristina Szanton Blanc (1994). Nations Unbound: Trans-
national Projects, Postcolonial Predicaments and Deterritorialized Nation-States. Amster-
dam: Gordon and Breach.
Berger, Peter and Thomas Luckmann (1966). The Social Construction of Reality. New
York: Doubleday.
108 chapter five
Blau, Peter, Terry Blum and Joseph Schwartz (1982). Heterogeneity and Intermarriage.
American Sociological Review 47: 4561.
Bogosavljevi, Srdjan, Vladimir Goati, Zdravko Grebo, Jasminka Hasanbegovi, Duan
Janji, Branislava Joji, and Paul Shoup (1992). Bosna i Hercegovina izmedju rata i mira.
Beograd and Sarajevo: Forum za etnike odnose.
Botev, Nikolai and Richard Wagner (1983). Seeing Past the Barricade: Ethnic Intermar-
riage in Yugoslavia during the Last Three Decades. Anthropology of East Europe Review
11 (12): 2734.
Bringa, Tone (1993). National Categories, National Identification and Identity Formation
in Multinational Bosnia. Anthropology of East Europe Review 11 (12): 6976.
Brubaker, Rogers (1992). Citizenship and Nationhood in France and Germany. Cambridge,
MA: Harvard University Press.
(1992a). Citizenship Struggles in Soviet Successor States. International Migration
Review 26: 269291.
(1994). Nationhood and the National Question in the Soviet Union and Post-Soviet
Eurasia: An Institutionalist Account. Theory and Society 23: 4778.
(1995). National Minorities, Nationalizing States, and External National Homelands
in the New Europe. Daedalus 124 (#2): 107132.
Burg, Steven and Michael Berbaum (1989). Community, Integration and Stability in Mul-
tinational Yugoslavia. American Political Science Review 83: 535554.
avoki, Kosta (1990). Tito: Tehnologija vlasti. Beograd: Dosije.
(1991). Slobodan protiv sloboda. Beograd: Dosije.
Chandra, Bipan, Mridula Mukherjee, Aditya Mukherjee, K. N. Pannikar and Sucheta
Mahajan (1989). Indias Struggle for Independence. Delhi: Penguin.
Churchill, Winston (1929). The World Crisis: The Aftermath. London: Thornton Butter-
worth.
Crkveni, Ivan and Mladen Kameni (1993). Aggression Against Croatia: Geopolitical and
Demographic Facts. Zagreb: Republic of Croatia, Central Bureau of Statistics.
Denich, Bette (1994). Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic
Revival of Genocide. American Ethnologist 21: 367390.
Djilas, Aleksa (1991). The Contested Country. Cambridge, MA: Harvard University Press.
Djilas, Milovan (1957). The New Class. New York: Harcourt, Brace.
Djuki, Slavoljub (1992). Kako se dogodio vodja. Beograd: Filip Vinji.
Douglas, Mary (1966). Purity and Danger: An Analysis of the Concepts of Pollution and
Taboo. London: Routledge.
Drakuli, Slavenka (1993). The Balkan Express: Fragments from the Other Side of War. New
York: W. W. Norton.
Geertz, Clifford (1973). The Integrative Revolution: Primordial Sentiments and Civil Poli-
tics in the New States. In C. Geertz, The Interpretation of Cultures, pp. 255310. New
York: Basic Books.
Gellner, Ernest (1983). Nations and Nationalism. Ithaca: Cornell University Press.
Gettys, Luella (1934). The Law of Citizenship in the United States. Chicago: University of
Chicago Press.
Gilroy, Paul (1987). There Aint No Black in the Union Jack. Chicago: University of Chicago
Press.
Glenny, Misha (1992). The Fall of Yugoslavia. New York: Penguin.
Hammel, E. A. (1993). Demography and the origins of the Yugoslav Civil War. Anthropol-
ogy Today, 9 (no. 1): 49.
(1993a). The Yugoslav Labyrinth. Anthropology of East Europe Review 11 (12):
3542).
Handler, Richard (1988). Nationalism and the Politics of Culture in Quebec. Madison,
WI: University of Wisconsin Press.
Hayden, Robert M. (1991). Yugoslavia: From Civil Society to Civil War. Paper presented at
the annual meeting of the American Anthropological Association, December XX, 1991.
imagined communities and real victims 109
(1992a). Constitutional Nationalism in the Formerly Yugoslav Republics. Slavic
Review 51: 654673.
(1992b). The Beginning of the End of Federal Yugoslavia: The Slovenian Amendment
Crisis of 1989. University of Pittsburgh, Center for Russian & East European Studies,
The Carl Beck Papers no. 1001.
(1992c). Human Rights Activists and the Civil War in Yugoslavia: The Questionable
Morality of Liberal Absolutism. Economic and Political Weekly, June 1320, 1992: 1252
1254.
(1993a). Recounting the Dead: The Rediscovery and Reinterpretation of Wartime
Massacres in Late- and Post-Communist Yugoslavia, in Rubie S. Watson, ed., Memory
and Opposition under State Socialism. Santa Fe: School of American Research.
(1993b). The Partition of Bosnia and Herzegovina, 199093. RFE/RL Research,
May 28, 1993: 114.
(1993c). Reply to Anto Kneevi. Slavic Review, Summer 1993.
(1993d). On Unbalanced Criticism. East European Politics and Societies 7: 577582.
(1994). The Use of National Stereotypes in the Wars in Yugoslavia. Paper presented
at the colloquium on National Images and Stereotypes as Factors of Political Change
in Central and Eastern Europe, Royal Netherlands Academy of Sciences, Amsterdam,
May 1820.
(1995). Constitutional Nationalism and the Logic of the Wars in Yugoslavia. Paper
presented at conference on Post-Communism and Ethnic Mobilization, Cornell Univer-
sity, Ithaca NY, April 2123 1995.
Herzfeld, Michael (1992). The Social Production of Indifference. Chicago: University of Chi-
cago Press.
Jambrei, Renata (1993). Banija: An Analysis of Ethnonymic Polarization. In L. Feldman,
I Prica and R. Senjkovi, eds., Fear, Death and Resistance: An Ethnography of War: Croa-
tia 19911992, pp. 73118. Zagreb: Institute of Ethnology and Folklore Research.
Jordan, W. m. (1943). Great Britain, France and the German Problem, 19181939. Lon-
don: Royal Institute of International Affairs.
Kapferer, Bruce (1988). Legends of People, Myths of State. Washington, DC: Smithsonian
Institution Press.
Keynes, John M. (1920). The Economic Consequences of the Peace. New York: Harcourt,
Brace and Howe.
Kneevi, Anto (1993a). Some Questions about a Balanced Discussion. East European
Politics and Societies 7: 155166.
(1993b). Letter to the Editor. Slavic Review, Summer 1993.
Lili, Stevan (1993). The Unbearable Lightness of Constitutional Being. Ms.
Loizos, Peter (1988). Intercommunal Killing in Cyprus. Man (n.s.). 23: 639653.
Macartney, C. A. (1934). National States and National Minorities. London: Oxford University
Press.
Madison, James, Alexander Hamilton and John Jay (1987 [orig. 1787]). The Federalist Papers.
New York: Penguin.
Mazowiecki, Tadeusz (1992). Report on the Situation in the territory of the former Yugo-
slavia prepared by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on
Human Rights. United Nations, General Assembly and Security Council, document
A/47/666 and S/24809 (annex), 17 November 1992.
(1993). Situation of Human Rights in the Territory of the Former Yugoslavia. United
Nations, Economic and Social Council, document E/CN.4/1993/50, 10 February 1993.
(1993a). Fifth Periodic Report on the Situation of Human Rights in the Territory
of the Former Yugoslavia. United Nations, Economic and Social Council, document
E/CN.4/1994/47, 17 November 1993.
Nandy, Ashis (1990). The Politics of Secularism and the Recovery of Religious Tolerance.
In Veena Das, ed., Mirrors of Violence: Communities, Riots and Survivors in South Asia,
pp. 6993. Delhi: Oxford University Press.
110 chapter five
Nehru, Jawaharlal (1946). The Discovery of India. New York: John Day.
Nikoli, Pavle (1991). Institucija Predsednika Republike i promaaji i nedoreenosti Ustava
Republike Srbije od 1990, Arhiv za pravne i drutvene nauke 77: 287295.
Olsen, Mary Kay G. (1983). Bridge on the Sava: Ethnicity in Eastern Croatia, 19811991.
Anthropology of East Europe Review 11 (12): 5462.
Petrovi, Rua (1987). Migracije u Jugoslaviji i etniki aspekt. Beograd: SSO Srbije.
(1992). The National Composition of Yugoslavias Population, 1991. Yugoslav Survey
1992 (no. 1): 324.
Rusinow, Dennison (1990). To Be or Not To Be: Yugoslavia as Hamlet. Field Staff Reports
18 (1990).
Samardi, Slobodan (1990). Jugoslavija pred iskuenjem federalizma. Beograd: Struna
knjiga.
(1991). Dilemma of Federalism in Yugoslavia Problem of Sovereignty in a Multina-
tional Federation. Praxis International 11: 377386.
Shoup, Paul (1994). The Bosnian Crisis of 1992. In Sabrina Ramet, ed., Beyond Yugoslavia.
(XXX: Westview Press).
Stolcke, Verena (1995). Talking Culture: New Boundaries, New Rhetorics of Exclusion in
Europe. Current Anthropology 36: 124.
Tambiah, Stanley J. (1986). Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy.
Chicago: University of Chicago Press.
(1989). Ethnic Conflict in the World Today. American Ethnologist 16: 335349.
(1992). Buddhism Betrayed? Religion, Politics and Violence in Sri Lanka. Chicago:
University of Chicago Press.
Todorova, Maria (1994). The Balkans: From Discovery to Invention. Slavic Review 53: 453
482.
van der Veer, Peter (1994). Religious Nationalism: Hindus and Muslims in India. Berke-
ley: University of California Press.
Varadi, Tibor (1992). Collective Minority Rights and Problems in their Legal Protec-
tion: The Example of Yugoslavia. East European Politics and Societies 6: 260282.
Varshney, Ashutosh (1993). Contested Meanings: Indias National Identity, Hindu Nation-
alism, and the Politics of Anxiety. Daedalus 122 (3): 227261.
Verdery, Katherine (1991). Nationalist Ideology under Socialism: Identity and Cultural Poli-
tics in Ceausescous Romania. Berkeley: University of California Press.
(1993a). Whither Nation and Nationalism? Daedalus 122 (3): 3746.
(1993b). Nationalism and Nationalist Sentiment in Post-Socialist Romania. Slavic
Review 52: 179203.
Woodward, Susan (1995). Balkan Tragedy: Chaos and Dissolution after the Cold War.
Washington, DC: Brookings Institution.
PART II
THE POWER OF LABELING: DISCOURSES ON GENOCIDE, ETHNIC
CLEANSING & POPULATION TRANSFERS
CHAPTER SIX
SCHINDLERS FATE:
GENOCIDE, ETHNIC CLEANSING AND POPULATION TRANSFERS
History repeats itself, first as tragedy, and then again as
tragedy.
Louis de Bernires (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 Schindlers List provided what many commentators took
to be simile and many others metaphor for the violence in Bosnia. The
cinematic version of Thomas Keneallys 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 Bene 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, Schindlers property in Poland and Czechoslovakia had, of course,
been confiscated by the Russians, thus accounting for the mans 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 Bene, President of the post-war
114 chapter six
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.
Benes 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 194546, 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. Gnter 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 Schindlers 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.
116 chapter six
It is just this sentiment that I wish to probe, however; or rather, its
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 Todorovs
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
evils 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 Adornos accusation that Stravinskys 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 evils 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
118 chapter six
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 Commissions 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 194647 took exactly the same position as
Radovan Karadi in 199192, refusing inclusion as a minority in someone
elses promised democracy in favor of creating a nation-state, based on
the right of self-determination, for Indias Muslim nation (note that I am
not thereby equating Alija Izetbegovi 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 194144, 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
120 chapter six
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? Isnt 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: 227243 and 267302). While I would not
dream of arrogating any claim at all to Arendts mantle, I would hope that
my effort is more closely related to hers than to Tudjmans.
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: 421422, 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: 208210).
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.
122 chapter six
Unaware at the time of Macartneys work, I analyzed the putatively
democratic constitutions of the formerly Yugoslav republics in 199192
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
199192, Palestine in 1948, Punjab in 194748. 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: 166171). 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 (Petruevska 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
August1995. 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,
124 chapter six
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 Commissions 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: 350351). 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 Indias Muslim nation, and thus to the partitioning of
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Britains 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
126 chapter six
(see Galanter 1982) this at a time (194950) 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 Indias 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 Izetbegovi 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.
schindler

s fate 127
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: 3133). In an action that David Owen calls incom-
prehensible (1995: 33), the other EC members ruled this out as opening
Pandoras 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 ECs 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:
343344). 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 elses state as were the people
of the Punjab in 1947 (see Smajlovi 1995). Saying that Sarajevo society
was composed of the intertwining of Muslim, Serb and Croat cultures is
as meaningful as Kafkas 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
128 chapter six
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-
schindler

s fate 129
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.
Schindlers 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 didnt simply find themselves in the
130 chapter six
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 Wilsons 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: 9899). 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: 9091). Harold Nicolson argued (1965: 13) that nineteen out of Presi-
dent Wilsons twenty-three Terms of Peace were flagrantly violated in
the Treaty of Versailles as finally drafted. Clemenceaus 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 Hitlers manipulation of the Germans of Czechoslovakia
schindler

s fate 131
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 Chamberlains 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.
Schindlers 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 Bene government until 1938 than most
minorities in Europe: second-class citizens, to be sure, but still citizens.
Bene, 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 199091, 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 Nehrus The Discovery of India sought to create an Indian national
ideology that was inclusive of all living in India, Tudjmans Bespua sought
to show how no state in which different peoples are intermingled can long
132 chapter six
exist. Part of the tragedy of Yugoslavia in 199091 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 Mileti 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 (Bogosavljevi 1995: xvi):
Minimum Maximum
Serbs 460,000 590,000
Croats 190,000 270,000
Muslims 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% (Bogosavljevi 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 194145
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 revengers 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
schindler

s fate 133
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 194145 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 194145 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, 194145
The number of people killed in Yugoslavia during the period 194145 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 Bogosavljevi
1995, Djilas 1991: 126128). 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: 318321). 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
134 chapter six
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 196264 by the Yugoslav government, but then suppressed as a state
secret until the late 1980s (see Boban 1990: 587, Bogosavljevi 1995). The
material has again been treated as a state secret, and is not available to
researchers (Bogosavljevi 1995: xv).
In view of the politicization of these figures, it should be noted that
the author cited in the main text, Srdjan Bogosavljevi, 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 Bogosavljevi
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
Bogosavljevi 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: 234255.
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.
Bernires, Louis de (1994). Corellis Mandolin. New York: Vintage.
Blanke, Richard (1993) Orphans of Versailles: The Germans in Western Poland, 19181939
Lexington, KY: University of Kentucky Press.
Boban, Ljubo (1990) Jasenovac and the Manipulation of History. East European Politics
and Societies 4: 580592.
Bogosavljevi, Sran (1995) Drugi Svetski Rat rtve u Jugoslaviji. Republika (Belgrade),
115 June 1995: xixvi.
Brubaker, Rogers (1995) Aftermaths of Empire and the Unmixing of Peoples: Historical
and Comparative Perspectives. Ethnic and Racial Studies 18: 189218.
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 Mileti (1990) Genocid nad Muslimanima, 194145. Sarajevo:
Svjetlost.
schindler

s fate 135
Denich, Bette (1994). Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic
Revival of Genocide. American Ethnologist 21: 367390.
Djilas, Aleksa (1991). The Contested Country: Yugoslav Unity and Communist Revolution,
19191953. 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, Gnter (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: 654673.
(1993). The Partition of Bosnia and Herzegovina, 199093. RFE/RL Research Report
2(#22): 114 (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. 167184. Santa Fe: School of American
Research.
(1996). Imagined Communities and Real Victims: Self-Determination and Ethnic
Cleansing in Yugoslavia. American Ethnologist, 23: 783801.
Herald Annual (1993). Special Report: Religious Minorities. The Herald Annual (Karachi
[?]), January 1993: 83109.
Kalvoda, Josef (1985). National Minorities in Czechoslovakia, 19191980, in Stephan
Horak, ed., Eastern European National Minorities 1919/1980: A Handbook. Littleton, CO:
Libraries Unlimited.
Keneally, Thomas (1993 [1982]). Schindlers List. New York: Simon and Schuster.
Klma, 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, Zdzisaw (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: 81100.
Nicolson, Harold (1965). Peacemaking, 1919. New York: Grosset and Dunlap.
Owen, David (1995). Balkan Odyssey. New York: Harcourt, Brace.
Petruevska, Tatjana (1995). International Recognition of Newly-Created States and
European Paradoxes on the Threshold of the Twentieth Century. Balkan Forum 3 (#1):
245267.
Seymour, Charles (1921). The End of Empire: Remnants of AustriaHungary. Pp. 87111
in Edward M. House, ed., What Really Happened at Versailles. New York: Scribner.
Smajlovi, Ljiljana (1995). From the Heart of the Heart of the Former Yugoslavia. Wilson
Quarterly, Summer 1995: 100113.
Todorov, Tzvetan (1996). Facing the Extreme: Moral Life in the Concentration Camps. New
York: Metropolitan/Henry Holt.
Tudjman, Franjo (1990). Bespua povijesne zbiljnosti. Zagreb: Nakladni zavod Matice
hrvatske.
Varshney, Ashutosh (1993). Contested Meanings: Indias National Identity, Hindu Nation-
alism and the Politics of Anxiety. Daedalus 122 (#3): 227261 (Summer 1993).
Woodward, Susan (1995). Balkan Tragedy. Washington, DC: Brookings Institute.
CHAPTER SEVEN
MASS KILLINGS AND IMAGES OF GENOCIDE IN BOSNIA,
194145 AND 199295
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 199295 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 clbre internationally, as seen in the passage of Written Declaration
1Until 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
(Bonjak) was adopted for official use for these peoples (see Fran Markowitz, Census and
Sensibilities in Sarajevo, Comparative Studies in Society and History 49: 4073 (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 Duli, Ilya Prizel and Dan Stone.
2Prosecutor 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.
3E. Tabeau and J. Bijak, War-related Deaths in the 19921995 Armed Conflicts in Bos-
nia and Herzegovina: A Critique of Previous Estimates and Recent Results, European Jour-
nal of Population, 21 (2005), 187215.
4Ibid.
138 chapter seven
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 194145, orga-
nized and effected in ways that seem much more clearly to fit the term
genocide than does the massacre in Srebrenica. From 194145, 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
5S. Bogosavljevi, 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. Duli, Utopias
of Nation: Local Mass Killings in Bosnia and Herzegovina, 194142 (Uppsala: Uppsala Uni-
versity Press, 2005), p. 314. The actual number of dead is undoubtedly substantially higher,
as both Bogosavljevi and Duli 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.
6R. 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. 16784; B. Denich, Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic
Revival of Genocide, American Ethnologist, 21 (1994), 36790. The best accounts of the
rise of Serbian nationalism in the 1980s are in Popov, ed., The Road to War in Serbia and
J. Dragovi-Soso, Saviours of the Nation: Serbias Intellectual Opposition and the Revival of
Nationalism (Montreal: McGill-Queens University Press, 2002).
7See R. Hayden, Balancing Discussion of Jasenovac and the Manipulation of History,
East European Politics and Societies, 6 (1992), 20712.
mass killings and images of genocide in bosnia 139
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 199295 war,
the majority of them Bosnian Muslims, and about 300,000 in the 194145
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
8M. Weber, Science as a Vocation, in From Max Weber, eds. H. Gerth and C. W. Mills
(New York: Oxford University Press, 1946), p. 146.
9Ibid., p. 145.
10If, 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 Baileys concept of the tactical uses of passion.
140 chapter seven
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,
11See, for example, T. Cushman and S. Metrovi, 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.
12F. G. Bailey, The Tactical Uses of Passion: An Essay in Power, Reason and Reality
(Ithaca, NY: Cornell University Press, 1983), p. 23.
13Some well-known works about Bosnia (for example, those by David Rieff, Norman
Cigar, Noel Malcom, Michael Ignatieff) are essentially prosecutors 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 prosecutors 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.
mass killings and images of genocide in bosnia 141
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
14T. Todorov, Facing the Extreme: Moral Life in the Concentration Camps (New York:
Metropolitan Books, 1996), p. 277.
15The literature on the formation of Yugoslavia is huge; recommended recent works
include D. Djoki, ed., Yugoslavism: Histories of a Failed Idea, 19181992 (London: Hurst,
142 chapter seven
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 (191941)
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
Drava 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 Titos 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 (194590) 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. 8392 and 93108.
16Standard 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, 19191953 (Cambridge, MA: Harvard University Press, 1991).
17See J. Tomasevich, War and Revolution in Yugoslavia, 19411945: Occupation and Col-
laboration. (Stanford, CA: Stanford University Press, 2001); Djilas, The Contested Country;
Duli, Utopias of Nation; and M. Djilas, Wartime (New York: Harcourt, Brace 1981).
mass killings and images of genocide in bosnia 143
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 199295, 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
18The masterwork on Titos Yugoslavia is D. Rusinow, The Yugoslav Experiment,
19481974 (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.
19Hayden, Blueprints for a House Divided; also R. Hayden, Constitutional Nationalism
in the Formerly Yugoslav Republics, Slavic Review, 51 (1992), 65473.
20R. Hayden, Imagined Communities and Real Victims: Self-Determination and Ethnic
Cleansing in Yugoslavia, American Ethnologist, 23 (1996), 783801.
21In 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
144 chapter seven
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
194145: 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 Bogosavljevi 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 Duli provides a much more detailed study, drawing on data
sources not available to Bogosavljevi. 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 15.920% of the Serbs, 10% of
the Muslims, and 56% of the Croats.25 His estimate of the deaths in
Bosnia-Herzegovina in the period is 292,000308,000, of whom Serbs
were 216,000229,000, Muslims 50,00053,000, Croats 12,500, Jews 10,500.26
(Amsterdam: VU Uitgeverij, 1995); see also Hayden Recounting the Dead, and Denich,
Dismembering Yugoslavia.
22The 194145 sources are Bogosavljevi, The Unresolved Genocide, and Duli, Utopias
of Nation; those for 199295 are E. Tabeau and J. Bijak, War-related Deaths in the 19921995
Armed Conflicts and the as yet unpublished findings of the Istraivako dokumentacioni
centar of Sarajevo (http://www.idc.org.ba) as reported by its President, Mirsad Tokaa, in
media interviews. These 199295 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 194145 period studies were self-funded (Bogosavljevi) and
funded from Swedish academic sources (Duli).
23Bogosavljevi, The Unresolved Genocide, p. 157
24Ibid., p. 155.
25Duli, Utopias of Nation, p. 317. In an email on 1 March 2006, Duli informed me that
he has recalculated erjavis figures and slightly lowered the upper range of percentage of
Serbs killed, to 19%; see T. Duli, Mass Killing in the Independent State of Croatia, 194145:
A Case for Comparative Research, unpublished ms.
26Duli, Utopias of Nation, p. 321.
mass killings and images of genocide in bosnia 145
However, flaws in the data sets make it likely that Croats were severely
undercounted and should be perhaps as high as 45,000.27
199295: 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, 199295, 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 Tokaas 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, Tokaa 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, Tokaa 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 199295 casualties agree that
total killed were about 102,000. They differ mainly in that the Tokaa
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.
27Ibid., p. 323.
28Oslobodjenje (9 December 2004).
29Report carried on Justwatch listserv, 10 December 2004.
30BBC 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 Tokaa.
146 chapter seven
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 Yugoslavias 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 Titos 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
31See Hayden, Recounting the Dead; Dragovi-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).
32See, e.g., D. Toi, The Democratic Alternative, pp. 2862297, and B. Horvat, The
Association for Yugoslav Democratic Initiative, pp. 298303, both in Yugoslavism, ed.
Djoki; Woodward, Balkan Tragedy.
33Woodward, Balkan Tragedy; Hayden, Constitutional Nationalism; I. Vejvoda, Yugo-
slavia 194591: From Decentralization Without Democracy to Dissolution, pp. 927 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. 4661; and X. Bougarel, Bosnie: Anatomie dun conflit (Paris: ditions La Dcouverte,
1996), revised edition published as K. Bugarel, Bosna: Anatomija Rata (Beograd: Fabrika
Table 1.Total Casualties by Ethno-National Group in Bosnia
194145 and 199295
Serbs Bosnian Muslims Croats
194145 216,000229,000 50,00053,000 12,500 [unrealistically
low figure due to
flaws in data set]
199295 24,216 63,687 2,619
Sources: 194145: T. Duli, Utopias of Nation (Uppsala 2005): p. 321 and 323 (Croats); 1992
95: Published interviews with Mirsad Tokaa, Istraivako dokumentacioni centar, Sara-
jevo, as of December 2005.
mass killings and images of genocide in bosnia 147
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 writers
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 ones 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 Re, 2004), ch. 1; Bougarel, Bosnia and Herzegovina: State and Communi-
tarianism, in Yugoslavia and After, eds. Vejvoda and Dyker.
34The 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. Mihailovi and
V. Kresti, 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 Dragovi-Soso, Saviours of the Nation, pp. 17795.
35M. Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge: Cam-
bridge University Press, 2005), pp. 3645.
36See Dragovi-Soso, Saviours of the Nation, pp. 18995; Woodward, Balkan Tragedy,
p. 94.
148 chapter seven
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
37Dragovi-Soso, Saviours of the Nation, pp. 18990. Other elements of Slovenian chau-
vinism towards other Yugoslavs are discussed in M. Baki-Hayden and R. Hayden, Orien-
talist Variations on the Theme Balkans, Slavic Review, 50 (1992), 115.
38The title of this subsection is borrowed from M. ivkovi, The Wish to be a Jew: The
power of the Jewish Trope in the Yougoslav [sic] Conflict, Cahiers de lUrmis, 6 (March
2000), 6984, and many of the ideas discussed in it are based on ivkovis work.
mass killings and images of genocide in bosnia 149
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 Drakovi 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 mens 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 Tudjmans invocation of symbols associated with
the NDH and the Ustasha in his political campaigns and in the newly
39Ibid., p. 73.
40Matije Bekovi, quoted and translated by ivkovi, ibid., p. 73.
41Ibid., pp. 73, 75.
42See I. Primoratz, Israel and Genocide in Croatia, in Genocide After Emotion: The
Postemotional Balkan War, ed. S. G. Metrovi (London: Routledge, 1996), pp. 195206.
43Ibid., p. 205.
44Duli, Utopias of Nation.
150 chapter seven
independent Croatia,45 and what have generally been interpreted as
antisemitic passages in his best-known book, Bespua 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 Ustae 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 Tudjmans 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 Tudjmans 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 Duli 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
45See S. Kinzer, Pro-Nazi Legacy Lingers for Croatia, New York Times (31 October 1993),
6; C. Hedges, Fascists Reborn as Croatias Founding Fathers, New York Times (12 April
1997), 3.
46Romania, however, also controlled its own camps (Ilya Prizel, personal communica-
tion, 14 February 2006).
47Antisemitizam: Jesu li Ustae zaista bili dentlmeni?, Globus (23 August 1991), 14.
48Croatia Apologizes to Jews for Nazi-Era Crimes, New York Times (23 August 1997),
A-6.
49F. Tudjman, Bespua povijesne zbiljnosti: Rasprava o povjesti i filozofiji zlosilja. (Zagreb:
Naklodni zavod Matice hrvatske, 1990), pp. 1568.
50Ibid., p. 160.
51Ibid., pp. 31620.
mass killings and images of genocide in bosnia 151
German camps for members of one nation to be the kapos for prisoners
of other groups.52
The image problem that Tudjmans book caused for Croatia can be
seen in the favorable article on Bespua 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 Tudjmans 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 Bosnias 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 Spielbergs film Schindlers 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
52Duli, Utopias of Nation, p. 260. Duli refutes other arguments by Tudjman about the
supposed role of Jews in Jasenovac on pp. 2613.
53Wikipedia article URL: http://hr.wikipedia.org/wiki/Bespu%C4%87a_povijesne_
zbiljnosti, checked 27 January 2006.
54This parallel is explicitly drawn, with references to other uses of it at the time, by
T. Cushman and S. Metrovi in the Introduction to This Time We Knew, pp. 613; indeed,
this volume is exemplary of the rhetorical tactic of grounding assertions about events in
Bosnia on supposed parallels with the Holocaust. Metrovis role in propagating such
152 chapter seven
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 Izetbegovi 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
194145: 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 Tudjmans advisors in 1990, a book that purported to dif-
ferentiate Western, thus civilized Croatia from Eastern, thus barbaric Serbia (S. Metrovi
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. Brcz, Goodness is Elsewhere: The Rule of European
Difference, Comparative Studies in Society and History, 48 (2006), 11038); in specific regard
to the former Yugoslavia, see M. Baki-Hayden, Nesting Orientalisms: The Case of Former
Yugoslavia, Slavic Review, 54 (1995), 91731, and M. Razsa and N. Lindstrom, Balkan is
Beautiful: Balkanism in the Political Discourse of Tudjmans Croatia, East European Poli-
tics and Societies, 18 (2005), 62850. Metrovi has used the facilities of his own universitys
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 Kunderas 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.
55B. Kouchner, Les Guerriers de la paix: Du Kosovo lIrak (Paris: Grasset, 2004), pp.
3745.
mass killings and images of genocide in bosnia 153
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 Titos 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 Miloevi
period, though it is now available and in fact was a main data source for
Dulis 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 Trzi).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 Tudjmans Bespua,
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.
199295: 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 Izetbegovi
had stated that more than 200,000 had been killed and that 70,000 people
56Bogosavljevi, The Unresolved Genocide, reviews these studies.
57Ibid., pp. 1524. Bogosavljevi was one of the highest officials in the Federal Bureau
of Statistics in the Ante Markovi period and thus had access to the materials.
58See Dragovi-Soso, Saviours of the Nation, pp. 10014.
59Ibid., 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.
154 chapter seven
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 Silajdi.
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 Gani raised the total to a quarter mil-
lion killed. Silajdi 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 25,00060,000 by former State Department officer George Kenney
to 200,000 by Chicago law professor Cherif Bassiouni.63 Since Kenneys 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
60Transcripts 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.
61On U.S. Public Broadcasting System, The Charlie Rose Show, 23 November 2005.
62The Civilian Toll of War, New York Times (18 December 2005).
63These studies are summarized and evaluated by Tabeau and Bijak, War-related
Deaths, p. 194.
mass killings and images of genocide in bosnia 155
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 Markovi 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 Dulis
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. Duli 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 194145 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
64V. 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.
65M. Markovi, A Preliminary Note on the Historical Background of the Present Yugo-
slav Crisis, in V. Dedijer, The Yugoslav Auschwitz and the Vatican, p. 11.
66G. Niemtietz, Preface to the First German Edition, in Dedijer, The Yugoslav Auschwitz
and the Vatican, p. 23.
67Djilas, The Contested Country, p. 126.
68Duli, Utopias of Nation, p. 313.
156 chapter seven
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 prisoners 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 Nikoli, a commander of the Suica Camp, and the
first trial that of a guard at the Omarska camp, Duko Tadi. 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
69These 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), 133; part 2, Journal of Human Rights, 1 (2002),
14372. 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.
70Ibid. Again, the web version of Campbells articles contains links showing interna-
tional television and newspaper coverage; the print version contains some of the news-
paper coverage.
71Data 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.
72Prosecutor 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.
73Prosecutor 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.
mass killings and images of genocide in bosnia 157
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 Izetbegovi, 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
Zlatas Diary: A Childs Life in Sarajevo, immediately hailed as the work of
the Bosnian Anne Frank.76 This other diary of a young girl77 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, efika,
evala, Pidameta, Hikmeta.78 Not quite six months later, she is told that
they want to publish a childs 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 Ive just heard, Mimmy, that you are
74ICTY Kvocka Judgment, paras. 45108.
75ICTY Banovic Sentencing Judgment, para. 22 (references omitted).
76Z. Filipovi, Zlatas Diary: A Childs Life in Sarajevo (New York: Viking, 1994).
77C. Lehmann-Haupt, Books of the Times: Another Diary of a Young Girl, New York
Times (28 February 1994).
78Filipovi, Zlatas Diary, p. 29.
158 chapter seven
going to be published! Youre 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 youre 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 havent done anything. Were 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 childs 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 Giovannis 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 clichs 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 Bespua,
this invitation attracted criticism from many quarters, and Elie Wiesel said
79Ibid., p. 96
80Ibid., p. 198.
81Ibid., p. 200.
82F. Prose, A Little Girls War, New York Times (6 March 1994).
83M. Stoji, Bosanskahercegovaka knjievnost i rat, BiH Dani no. 216 (27 July 2001).
84Zlatas Diary, p. viii.
mass killings and images of genocide in bosnia 159
that his [Tudjmans] 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 199195 war.87 Both the U.S. Holocaust Museum and
Israels 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 Tudjmans 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
85Anger Greets Croatians Invitation to Holocaust Museum Dedication, New York Times
(22 April 1993); see also A Different Guest (editorial), Washington Post (4 April 1993).
86Holocaust Museum Hailed as Sacred Debt to Dead, New York Times (23 April 1993).
87Croatian 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.
88Jasenovac opet posvaao ive zbog mrtvih, Jutarnji.hr, (published on-line 13 January
2006 14:40).
160 chapter seven
as representation of the events of 194145. 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 199195 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
Museums 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 Krsti 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
89See R. Hayden, Schindlers Fate: Genocide, Ethnic Cleansing and Population Trans-
fers, Slavic Review, 55 (1995), 72778. 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.
90Prosecutor v. Radislav Krsti, ICTY Trial Chamber I, Judgment, 2 August 2001, para. 1
(hereafter, Krsti trial judgment).
mass killings and images of genocide in bosnia 161
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 Krsti.
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
91All 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), 22948.
92Krsti trial judgment, para. 540. While the Krsti court uses the definition found in the
ICTYs founding statute, this is drawn directly from the relevant UN treaty definitions.
93Ibid., para. 544.
94Ibid., para. 552.
95Ibid., para. 560.
162 chapter seven
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 territory98 strange, because this reasoning
seems to acknowledge a military strategic reason for killing the men of
military age.
Through this reasoning, the Krsti 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 Staki 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
96Ibid., para. 590.
97Ibid., para. 595.
98Ibid., para. 595.
99Prosecutor v. Milomir Stakic, ICTY Trial Chamber II, Judgment, 31 July 2003.
mass killings and images of genocide in bosnia 163
Duli 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 others 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 Krsti 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
100Duli, Utopias of Nation, pp. 1819.
101See, e.g., P. Brass, The Partition of India and Retributive Genocide in the Punjab,
194647: Means, Methods and Purposes, Journal of Genocide Research, 5 (2003), 71101.
102Prosecutor v. Radislav Krsti, ICTY Appeals Chamber Judgment, 19 April 2004 (here-
after, Krsti appeal), para. 12.
103Krsti 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 Bosnias peoples.
104Krsti appeal, para. 16.
164 chapter seven
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
Momilo Krajinik, one of the most important political actors among the
Bosnian Serbs from 1990 throughout the war. According to the indictment
against him,106 Krajinik
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 Krajinik 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, Krajinik 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-
105Krsti appeal, para. 36.
106Prosecutor v. Momilo Krajinik, Consolidated amended Indictment, 7 March 2002.
107Prosecutor v. Momilo Krajinik, ICTY Trial Chamber I, Judgement, 27 September
2006, para. 21.
mass killings and images of genocide in bosnia 165
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 Krajinik 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 Krajinik 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 Krsti 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 Mladi.
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 Krsti 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, Krsti); that a
leading political authority of the Bosnian Serbs had no intent to commit
genocide (ICTY, Krajinik, referred to by ICJ); that Serbia neither ordered
the Bosnian Serb Army to commit the murders at Srebrenica nor was it in
108Krajinik judgement, paras. 867869.
109International 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.
110Ibid. Paras. 296, 297.
111 Ibid. Para. 413.
166 chapter seven
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 Krajinik 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 (Krajinik), nor
even one of the generals who carried it out (Krsti). Presumably, General
Ratko Mladi 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 Krsti
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 Krsti
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, Tudjmans 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 Krsti decision seems to accept genocide as the universal phenome-
non that Tudjman envisions, though unlike Tudjman it does assign guilt.
The Krsti 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,
112Tudjman, Bespua, p. 166.
mass killings and images of genocide in bosnia 167
but of Greeks from Anatolia and Turks from Greece in 1923, Serbs from the
Independent State of Croatia in 194145, 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 Krsti 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 Krsti decisions 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.
113Hayden, Schindlers Fate.
114Quoted 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.
168 chapter seven
With this in mind, the invocation by Serb politicians in 199092 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 199293 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,
115See Editorial: Looking for a Culprit, in Transitions on Line (7 February 2006), http://
www.tol.cz/look/TOL/.
116See R. Hayden, Democracy without a Demos? The Bosnian Constitutional Experi-
ment and the Intentional Construction of Nonfunctioning States, East European Politics &
Societies, 19 (2005), 22659.
117K. Verdery, The Political Lives of Dead Bodies: Reburials and Postsocialist Change (New
York: Columbia University Press, 1999), p. 21.
118Ibid., p. 102.
mass killings and images of genocide in bosnia 169
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 199091 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 Izetbegovi 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.
119Actually, 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 19921995: 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: 1516,
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
1As 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 womans 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).
172 chapter eight
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
2Non-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.
3Akayesu (Rwanda Tribunal; see Note 1); this definition was adopted in the Yugoslav
Tribunal in Prosecutor versus Zejnil Delali and others, IT-96-21-T (19 November 1998); avail-
able at http://www.un.org/icty/celebici/judgement/main.htm.
4There 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.
sexual violence in liminalized states 173
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.
5Sandays 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, Sandays 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.
174 chapter eight
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 Bonjaci [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
6Religion 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 (Baki-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 194145 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.
7A reviewer of this paper has noted that in South Asia, Pakistan opted for a religious
definition of the nation but that Indias self-definition is that of a secular state. While this
comment is certainly accurate in regard to the Nehruvian definition of India (Nehru 1946),
sexual violence in liminalized states 175
Bosnia 199295: 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 worlds 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
arkov 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
Indias 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).
8This 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 arkov 1997, Kesi 1994 and Kora 1996.
9This 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 arkov (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.
10Probably 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.
176 chapter eight
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 arkov (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 Michigans
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
11At 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.
12MacKinnon 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 MacKinnons
own assertion (arkov n.d.).
sexual violence in liminalized states 177
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 Karadi
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
13The ICTY registered its first conviction for rape as both a violation of international
humanitarian law and as torture against one Hazim Deli (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 Delali 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.
14ICTY, Prosecutor v. Radovan Karadi and Ratko Mladi (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).
15Which 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 Delali case, the opinion of which discusses the
matter extensively.
178 chapter eight
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 199295
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
16The similarities between events in Punjab in 1947 and those in Bosnia in 1992 are
explained in greater detail in Hayden (1996).
17India 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.
sexual violence in liminalized states 179
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 voters lists or combustible powders, and on the other that crowds
draw upon repositories of unconscious memories (Das 1990a: 28).
180 chapter eight
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).
sexual violence in liminalized states 181
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 Tribunals 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:
386387), 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 199293, 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
18Akayesu, Para. 7.7.
182 chapter eight
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, Lets 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.
19This is not necessarily a moral issue, however, or at least not one based on consider-
ations of womens 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).
sexual violence in liminalized states 183
Some Common Features: Partition and the Importance of Womens 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 199293 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 dont 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 isnt
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 Id do? Id go and seek out people I
shot at. Id recognize them with no problem. Id introduce myself to them.
Seriously. Id say, I shot at you, here I am, punish me. That would save me,
even if they killed me (Vukovi 1993: 31).
On the other hand, hatred was the emotion named explicitly by a Sarajevo
Muslim woman victim of sexual violence (Vukovi 1993: 134):
20One 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.
21In reporting this comment I violate a fieldwork rule: its not in my notes, but was
engraved in my memory.
184 chapter eight
Im a Muslim woman, thirty-five years old. My second, my newborn son, I
named him Jihad, so that he wouldnt forget his mothers 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 womans
body...became a sign through which men communicated with each
other. This communication is not only expressed through the violation
of the womans 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 victims 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 womens bodies as territory to be con-
quered and engraved the division of India into India and Pakistan on
sexual violence in liminalized states 185
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 arkov
(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, arkov 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 (arkov 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 arkov, 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
nations 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 (arkov n.d.: 250).
186 chapter eight
arkov concludes that womens bodies are not symbolic markers of
ethnic or national identity (as per, for example, Menari 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: 274275). 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: 274275).
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 Bornemans formula have been explicated in detail by
others, such as in Katherine Verderys (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). Bornemans 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-
sexual violence in liminalized states 187
socialist governments (Gal 1994) but no sign of genocide; and Romanias
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
22A 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 Nasrins 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.
188 chapter eight
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 Sandak region of Serbia and Montenegro bordering Bosnia
has a large population of Slavic Muslims, who now call themselves Bos-
niaks. In 199293, 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
23Which is not to say that new social partitions may not produce new campaigns of
mass rape. Taslima Nasrins 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.
sexual violence in liminalized states 189
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 Sandak, 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 Sandak 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
24In 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 Sandak, but none of them mentions sexual
violence.
25In 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 Ustaa in 1942, at the
start of the Croatian campaign against the Serb population.
190 chapter eight
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
sexual violence in liminalized states 191
vehicles for symbolic politics because of their connections to matters of
accountability, personal grief, victimization and suffering; but raped bod-
ies, as arkov 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
26The 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.
27Das 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.
192 chapter eight
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
arkovs 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 Karadi 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?
28Apart from the apocryphal fax to a womens 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?
sexual violence in liminalized states 193
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: 5662). 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.
194 chapter eight
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: 175183). 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
194748, 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
29One 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: 149153). In both
India and rural Bosnia, freedom of marital choice was hardly unconstrained.
sexual violence in liminalized states 195
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 brides community is
legally sexual violence even when the marriage saves a womans 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 Miloevi, 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
30Of 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: 149154).
31See Danas 11 March 1991: 3033, Borba 30 Sept. 1991: 11.
32Vjesnik, 20 March 1991: 3.
33Feral Tribune, 11 January 1994.
34See also Internet Naa Borba, 18 March 1997 and 23 March 1997.
196 chapter eight
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 34 1998. Colleagues who have read an earlier draft and commented
on it include Joseph Alter, Rada Drezgi, Eugene Hammel, Elissa Helms,
Dennison Rusinow and Dubravka arkov, 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.
References
Abler, Thomas (1992). Scalping, Torture, Cannibalism and Rape: An Ethnohistorical Analy-
sis of Conflicting Cultural Values in War. Anthropologica 34: 320.
Allen, Beverly (1996). Rape Warfare: The Hidden Genocide in Bosnia-Hercegovina and
Croatia. Minneapolis: University of Minnesota Press.
Baki-Hayden, Milica (1995). Nesting Orientalisms: The Case of Former Yugoslavia. Slavic
Review 54: 917931.
sexual violence in liminalized states 197
Blackstone, William (1783). Commentaries on the Laws of England, Book the Fourth. (9th
ed.) London: W. Strahan/Oxford: D. Prince.
Borneman, John (1998). Toward a Theory of Ethnic Cleansing: Territorial Sovereignty,
Heterosexuality and Europe. In John Borneman, Subversions of International Order.
Albany: SUNY Press.
Bringa, Tone (1995). Being Muslim the Bosnian Way. Princeton: Princeton University
Press.
Brownmiller, Susan (1975). Against our Will: Men, Women and Rape. New York: Simon &
Schuster.
Butalia, Urvashi (1993). Community, State and Gender: On Womens Agency during Parti-
tion. Economic & Political Weekly 28 (#17): WS12WS24 (April 24, 1993).
Chatterji, Joya (1994). Bengal Divided: Hindu Communalism and Partition, 19321947.
Cambridge: Cambridge University Press.
Copelon, Rhonda (1994). Surfacing Gender: Reconceptualizing Crimes against women
in Times of War. In Mass Rape: The War Against women in Bosnia-Hercegovina.
A. Stiglmayer, ed. Lincoln, NE: University of Nebraska Press.
Das, Veena (1990a). Introduction: Communities, Riots and Survivors. In Mirrors of Vio-
lence: Communities, Riots and Survivors in South Asia. Veena Das, ed. Delhi: Oxford
University Press.
(1990b). Our Work to Cry, Your Work to Listen. In Mirrors of Violence: Communities,
Riots and Survivors in South Asia. Veena Das, ed. Delhi: Oxford University Press.
(1995). National Honour and Practical Kinship: Of Unwanted Women and Children.
In Veena Das, Critical Events (Delhi: Oxford University Press).
(1996). Language and Body: Transactions in the Construction of Pain. Daedalus
(Winter 1996): 6791.
Denich, Bette (1994). Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic
Revivasl of Genocide. American Ethnologist 21: 367390.
(1995). Of Arms, Men and Ethnic War in (Former) Yugoslavia. In Feminism, National-
ism and Militarism. Constance R. Sutton, ed. Washington, D.C.: American Anthropologi-
cal Association.
Fitamant, D. Serrano (1999). Assessment Report on Sexual Violence in Kosovo. United
Nations Population Fund, May 1999.
Gal, Susan (1994). Gender in the Post-Socialist Transition: The Abortion Debate in Hun-
gary. East European Politics and Societies 8.
Gow, James (1997). Triumph of the Lack of Will: International Diplomacy and the Yugoslav
War. New York: Columbia University Press.
Hayden, Robert M. (1995). Recounting the Dead: The Rediscovery and Redefinition of
Wartime Massacres in Late- and Post-Communist Yugoslavia. In Memory, History and
opposition under State Socialism. Rubie S. Watson, ed., pp. 167184. Santa Fe: School of
American Research Press.
(1996). Schindlers Fate: Genocide, Ethnic Cleansing and Population Transfers. Slavic
Review 55: 727778.
(1996a). Imagined Communities and Real Victims: Self-Determination and Ethnic
Cleansing in Yugoslavia. American Ethnologist 23: 783801.
(1998). Bosnias Internal War and the International Criminal Tribunal. The Fletcher
Forum of World Affairs 22 (1): 4563.
(1998a). Bosnia: The Contradictions of Democracy without Consent. East European
Constitutional Review 7 (no. 2): 4751.
(1999). Muslims as Others in Serbian and Croatian Political Rhetoric. In Neighbors
at War: Anthropological Perspectives on Yugoslav Ethnicity, culture and History. Joel
Halpern and David Kideckel, eds. State College, PA: University of Pennsylvania Press.
Helms, Elissa (n.d.). Feminism vs. Nationalism: Representations of Wartime Rape in
Bosnia-Hercegovina. Unpublished paper in authors files.
198 chapter eight
(n.d. 2). The Nation, Culture and Rape: The Aftermath of Wartime Rapes in the for-
mer Yugoslavia. Unpublished paper in authors files.
Human Rights Watch/Helsinki (1994). Human Rights Abuses of Non-Serbs in Kosovo,
Sandak and Vojvodina. New York: Human Rights Watch/Helsinki.
Humanitarian Law Center (1995). Spotlight On: Human Rights Violations in Times of
Armed Conflict. Belgrade: Humanitarian Law Center.
Kakar, Sudhir (1995). The Colours of Violence. Delhi: Viking.
Kesic, Vesna (1994). A Response to Catherine MacKinnons Article Turning Rape into Por-
nography: Postmodern Genocide. Hastings Womens Law Journal 5: 267280.
Khilnani, Sunil (1997). The Idea of India. New York: Farrar, Strauss, Giroux.
Khosla, G. D. (1989). Stern Reckoning: A Survey of the Events Leading Up To and Following
the Partition of India. Delhi: Oxford University Press.
Kligman, Gail (1992). The Politics of Reproduction in Ceausescous Romania: A Case Study
in Political Culture. East European Politics and Societies 6: 364418.
Korac, Maja (1996). Ethnic conflict, Rape and Feminism: The Case of Yugoslavia. Research
in Russia and Eastern Europe 2: 247266.
Ludden, David (ed.) (1996). Contesting the Nation: Religion, Community and the Politics
of Democracy in India. Philadelphia: University of Pennsylvania Press.
MacKinnon, Catherine (1993). Turning Rape into Pornography: Postmodern Genocide.
Ms., JulyAugust: 2430.
(1994). Rape, Genocide, and Womens Human Rights. Harvard Womens Law Journal
17: 516.
Malkki, Liisa (1995). Purity and Exile: Violence, Memory and National Cosmology among
Hutu Refugees in Tanzania. Chicago: University of Chicago Press.
Menon, Ritu and Kamla Bhasin (1993). Recovery, Rupture, Resistance: Indian State and
Abduction of Women During Partition. Economic & Political Weekly 28 (#17): WS2
WS11 (April 24, 1993).
(1998). Borders and Boundaries: Women in Indias Partition. New Brunswick: Rutgers
University Press.
Meznari, Silva (1994). Gender as an Ethno-Marker: Rape, War and Identity Politics in the
Former Yugoslavia. In Identity Politics and Women. V. Moghadam, ed. San Francisco:
Westview.
Minear Richard (1971). Victors justice: The Tokyo War Crimes Trial. Princeton: Princeton
University Press.
Mostov, Julie (1995). Our Women Their Women: Symbolic Boundaries, Territorial Mark-
ers and Violence in the Balkans. Peace and Change 20: 515529.
Mujki, Mustafa Spahi (1994). Gore od Silovanja: Zlo Mjeovitih Brakova. Liljan, 10 August
1994: 22.
Nasrin, Taslima (1994). Lajja: Shame. Delhi: Penguin.
Nehru, Jawaharlal (1946). The Discovery of India. New York: John Day.
Nowrojee, Binaifer (1996). Shattered Lives: Sexual Violence During the Rwandan Genocide
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: 116.
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.
Journal of Social Issues 37: 527.
(1990). Fraternity Gang Rape. New York: New York University Press.
Sells, Michael (1996). The Bridge Betrayed: Religion and Genocide in Bosnia. Berkeley: Uni-
versity of California Press.
Tambiah, Stanley (1992). Buddhism Betrayed? Religion, Politics and Violence in Sri Lanka.
Chicago: University of Chicago Press.
Tilly, Charles (1986). The Contentious French. Cambridge, MA: Harvard University Press.
sexual violence in liminalized states 199
U.S. Department of State (1999). Erasing History: Ethnic Cleansing in Kosovo (report, May
1999).
van der Veer, Peter (1994). Religious Nationalism: Hindus & Muslims in India. Berkeley:
University of California Press.
Varshney, Ashutosh (1993). Contested Meanings: Indias National Identity, Hindu National-
ism, and the Politics of Anxiety. Daedalus 122 (#3): 227261.
Verdery, Katherine (1996). From Parent-State to Family Patriarchs: Gender and Nation in
Contemporary Eastern Europe. In Katherine Verdery, What was Socialism and What
Comes Next? Princeton: Princeton University Press.
(1999). The Political Lives of Dead Bodies: Reburial and Postsocialist Change. New
York: Columbia University Press.
Vukovi, eljko (1993). Ubijanje Sarajeva. Podgorica: Kron.
Wallace, Paul (1996). The Costs of Partition in Europe: A South Asian Perspective. Slavic
Review 55: 762766.
arkov, Dubravka (1997). War Rapes in Yugoslavia: On Masculinity, Femininity and the
Power of Rape Victim Identity. Tijschrift voor Criminologie 39 (2): 140151.
(n.d.). Sexual Geography of Ethnicity. Part II of From Media War to Ethnic War:
The Female body and Nationalist Processes in the Former Yugoslavia, 19861994
(unpublished draft of doctoral dissertation, Center for Womens Studies, University of
Nijmegen).
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 governments suppression of the free speech of various national-
ists who urged the disintegration of the country. At that time, the Yugo-
slav governments 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 194145 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., Croatias
President Franjo Tudjman and State Prosecutor Vladimir eks),1 or have
1Criminal charges were filed by eks office against the satirical writer Tanja Torbarina
for defaming the president in a satirical piece based on Tudjmans shift of residency
204 chapter nine
organized extremist (para-) military forces which are heavily involved in
murdering and expelling members of other ethnic groups (e.g. Serbias
Vojislav eelj and Croatias 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 HWs action was noted only in one Croatian newspaper which itself
has been attacked by Tudjmans government (see Borba [Belgrade], 26 May 1992: 2 and
27 May 1992: 30).
2eelj, 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, eelj 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).
3The 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: 1726).
4In an exercise of either stunning naivet 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 Labers original article.
human rights activists and the civil war in yugoslavia 205
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
5Even 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 cant 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.
206 chapter nine
advocates tend to draw the line at calls for violence and will not defend
such speech. Thus, Amnesty Internationals 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,
eks, eelj 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 Hitlers 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,
human rights activists and the civil war in yugoslavia 207
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.
6In 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 Slovenias action, in the first few days after proclaiming
its independence, in building customs barriers on its border with its fellow secessionist
republic, Croatia.
208 chapter nine
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 Tudjmans Bespua
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
7F. Tudjman, Bespua povijesne zbiljnosti (Zagreb, 1989), p. 166.
human rights activists and the civil war in yugoslavia 209
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 Tudjmans 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 199192).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 Tudjmans 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, 194145), 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
8Despite 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.
210 chapter nine
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 Hitlers 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 dissidents9 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-
9It 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.
human rights activists and the civil war in yugoslavia 211
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 199192, 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.
Mea Selimovi, 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 judges 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,
1Human Rights Watch, World Report 2000: Introduction (www.hrw.org/wr2k/Front
.htm.)
2Id.
3Id.
214 chapter ten
U.N. Governor of Kosovo after NATOs 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, Kouchners personal elevation to administrative office
as well as his organizations 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 NATOs
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
4Los Angeles Times, Oct. 18, 1999.
5Id.
6V. Havel, Kosovo and the End of the Nation-State, New York Review 10 June 1999 at
4, 6.
7HRW World Report 2000 at 1.
humanrightsism 215
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
8Id. at 6.
9Id. at 910.
10The gendered pronoun is intentional no women have yet been charged by the
ICTY.
216 chapter ten
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 ICTYs
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 Marti, 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
11Prosecutor 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 Tribunals web page: www.un.org/icty/.
humanrightsism 217
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 childrens hospital.13
The use of cluster bombs is key to the Marti 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 NATOs
May 7 attack on the city of Ni, when cluster bombs fell on the market,
killing fifteen people, and the citys 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 NATOs
use of cluster bombs against the city of Ni 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;
Marti 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. Martis com-
ment to a Western reporter that I am very sorry if civilian targets were
hit because our aim was to hit military targets19 may be compared to any
12Prosecutor 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.
13Id. at 18.
14Martic indictment, para. 6.
15BBC News Online, May 7, 1999.
16The Times (London), June 13, 1999.
17Philadelphia Inquirer, Nov. 21, 1999, p. 1.
18Martic Rule 61 hearing at 20.
19Martic Rule 61 hearing at 20.
218 chapter ten
of a large number of NATO statements about collateral damage, includ-
ing NATOs decision on about May 1 to stop even issuing such apologies.20
While the Rule 61 hearing on Marti introduced evidence from interviews
that showed that Marti 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 Tribunals disinterest in NATOs 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 NATOs 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 Marti 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
20At NATO, a crash course in spin, MSNBC www service, 1 May 1999.
21BBC News Online, Oct. 22, 1999.
2216 May comments: www.nato.int/kosovo/press/p990516b.htm; 17 May comments:
www.nato.int/kosovo/press/p990517b.htm.
23The Observer (London), Dec. 26, 1999; New York Times Dec. 29, 1999.
24New York Times, Dec. 30, 1999, at A5.
25Id.
humanrightsism 219
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 NATOs actions.27
Selective Prosecution 2: Wanton Destruction of Property
In July 1995, the Prosecutor of the ICTY indicted Radovan Karadi and
Ratko Mladi. 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
26ICTY Press Release PR/P.I.S./459-e, 30 December 1999.
27Washington Times, Dec. 30 1999, New York Times Jan. 3 2000, at A6.
28Prosecutor v Radovan Karadzic and Ratko Mladic, Indictment, 25 July 1995 (hereafter,
Karadzic/Mladic indictment), para. 29.
29Id. at para. 41.
30Grupa 17, Zavrni raun: Ekonomske posledice NATO bomabardovanja (Beograd:
Stubovi kulture, 1999) at 9.
220 chapter ten
continued31 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.
NATOs 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
cant 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 Karadi and Mladi, 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 Sheas view, as quoted in the last
section, is accurate, and that we should not expect to see the FOT (Friends
of the Tribunal) indicted.
31BBC News Online, Oct. 15, 1999.
32www.msnbc.com/news April 26, 1999.
33See, e.g., Wall Street Journal April 27, 1999, p. 1; BBC News Online 15 October 1999.
34Washington Post, Sept. 20, 1999, at A20.
35Aryeh Neier, War Crimes (New York: Times Books, 1998), at 169.
humanrightsism 221
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 Belgrades 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 NATOs 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.
36Washington Times, April 25, 1999, at C9.
37Washington Post, May 24, 1999 (World Wide Edition).
38Washington Post, May 25, 1999. P. A1.
39New York Times, May 25, 1999, p. A1.
40Washington Post, May 25, 1999. P. A1.
41 BBC News Online, May 24, 1999.
222 chapter ten
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 Marti. However, as a spokesman for the Interna-
tional Relations Committee of the U.S. House of Representatives told the
National Post (Ottawa), Youre 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:
Miloevi but Not Tudjman
The putative independence and impartiality of the ICTY was utterly com-
promised by the indictment on May 27 of Yugoslav President Miloevi
and four of his political associates. While there may be little question that
Miloevi 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 Sheas 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 Miloevi. 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 Drakovi
In July 1999, I was surprised when a close advisor to Vuk Drakovi told
me that the United States was threatening Drakovi with indictment by
the ICTY. If the Prosecutors 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-
42National Post, May 22, 1999.
43New York Times, 21 March 1999.
humanrightsism 223
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. governments inter-
departmental Balkans Task Force is now to support the Prosecutors 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 Prosecutors 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
Duko Tadi.45 In that case, no witness had testified to having seen Tadi
personally commit an atrocity, such as murder or rape. However, the Pros-
ecutors final witness testified that not only had he seen Tadi rape and
murder, but he had also been forced by Tadi 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 Tadi.
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 Womens Human Rights Law Clinic of the City
44New York Times, Oct. 15, 1999, at A8.
45Candor 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
prcis of the testimony is found in my article in 22(#1) The Fletcher Forum of World Affairs
4564 [1998]). Apart from one very brief meeting with Tadi in May 1996, at the request
of his defense counsel, I had and have no personal acquaintance with Tadi or knowledge
of the crimes for which he was accused.
46H. Kamen, The Spanish Inquisition (New Haven: Yale University Press 1997), at 182,
194195.
224 chapter ten
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 Tadi, and then trained by
them in the testimony he was to give in the ICTY. Confronted with these
lies, the Prosecutor in Tadi 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 Opai, 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 Prosecutors 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 Izetbegovi,
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 Tadis defense lawyers, who had gone to
Sarajevo to investigate the matter themselves, but who had been given
the cold shoulder by the Izetbegovi government,50 first heard of this
47Prosecutor v Dusko Tadic, Decision on the Prosecutors Motion Requesting Protec-
tive Measures for Victims and Witnesses, 10 August 1995, at paras. 1011.
48The basic story of Witness L can be found in news accounts: e.g. Internet Naa
Borba 28 October 1996, Reuters, Oct. 25, 1996, Associated Press, Oct. 25, 1996. Copies of
an interrogation of Witness L by Tadi defense attorney, Michail Wladimiroff, and of an
Oct. 25, 1995 statement by ICTY Prosecutors investigator Robert Reid concerning Witness
Ls lies and accusations against the Bosnian government are in authors files. The most
detailed account of the Witness L matter was broadcast on Dutch VPRO Radios Argos
program on Sept. 10, 1999, a transcript of which (in English) is available at www.domovina
.net/opacice.html (hereafter, Argos).
49Institute for War and Peace Reporting, Tribunal Update no. 6 (Dec. 26, 1996).
50Letter to author from Michail Wladimiroff, 11 Nov. 1996.
humanrightsism 225
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 witnesss 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 witnesss story seemed to indicate that the Prosecutors
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. Opai, 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 Opai had an attorney to represent him on these
issues, he was returned to the Muslims, without prior notice being given
to his attorney.54 Opais 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 governments courts refused a new trial.55 Yet immediately
after this false case received world-wide publicity, Opai 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 Opai matter more thoroughly, or to
consider his request for asylum, a Tribunal spokesperson said that
51Fax letter from author to Michail Wladimiroff, 30 Dec. 1996; fax letter to author from
Michail Wladimiroff, 7 January 1997.
52It 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.
53ICTY: Tadic Case: Update, 2 June 1997.
54Argos.
55New York Times, 1 March 1997, at 3; Washington Post, 15 March 1997, at A15; New York
Times, 15 June 1997, at 10.
56Argos.
226 chapter ten
Defense Counsel Vladimirof [sic] did not prove that all of Dragan Opais
story was untrue. The only point that was established is that Opai lied
about his family members. His father wasnt at all dead, as he had claimed.
And that is the basis upon which the prosecutor decided that Opai was
not a reliable witness.... Why Opai 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 Opai 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 Opais identity but was overruled.59
The questions of why Opai lied and especially of whether the Bos-
nian government and even the Prosecutors 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 witnesss]
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 Opai was in the cus-
tody of the Bosnian government because he was captured as a soldier
in the Bosnian Serb Army, the second witnesss name (Nihad Seferovi)
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 Opai
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 Tadi and for the witness himself (who claimed,
apparently with justification, to have been the victim of mistreatment by
57Id.
58Fax letter to author from Michail Wladimiroff, 30 October 1997.
59Id.
60Prosecutor v Dusko Tadic, Judgment, 15 July 1999 (hereafter, Tadic appeal judgment),
para. 65.
humanrightsism 227
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 Tadi 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
61Prosecutor v Dusan Tadic, Decision on the Defense Motion for Interlocutory Appeal on
Jurisdiction, 2 Oct. 1995 (hereafter, Tadic Interlocutory), para. 81.
62Id. at para. 77.
63Id. para. 76.
228 chapter ten
Chamber viewed the matter as controlled by the International Court
of Justices 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 Tadi 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-
64Case 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.
65Prosecutor 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).
66Id. para. 608.
67Tadic appeal judgment, para. 167.
humanrightsism 229
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 Chambers 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
68Id. para. 86, emphasis added.
69Id., IV.B.3 (heading).
70Tadic trial judgment, para. 605.
71Id. para. 599.
230 chapter ten
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
72Tadic appeals judgment, para. 167.
73Id. para. 168.
74Id. para. 168.
75Id. para. 121, emphasis added.
76Id. paras. 157160.
77Id. para. 16.
78Id. note 107.
humanrightsism 231
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 Prosecutors 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 Prosecutors office were American
and it is likely that the U.S. government supported the Appeals Chambers
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 Holbrookes reference
to the harsh behavior of Federation troops during the [Sept. 1995] offen-
sive, which would have produced forced evictions and random murders
79Prosecutor v Radovan Karadi and Ratko Mladi, Review of the Indictments Pursu-
ant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, (hereafter, Karadi and
Mladi, Rule 61 proceeding) para. 3.
80Id. 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.
81Globus, 20 Oct. 1995.
232 chapter ten
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 cant 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 Holbrookes 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 victors justice.86 It is clear, however, that the ICTY is no more
impartial than were earlier these earlier tribunals. Instead of being victors
justice after the conflict, it is a tool meant to ensure victory during it.
82R. Holbrooke, To End a War (1998), at 166.
83Id., at 160.
84Id. at 73.
85New York Times, May 30, 1996, at A7.
86A. Neier, War Crimes (1998), at 259.
humanrightsism 233
Human Rights Peccadilloes and Humanitarian War Crimes
To its credit, HRW has recognized that NATOs actions in its war against
Yugoslavia signaled a disturbing disregard for the principles of humani-
tarianism that should guide any such action87 and criticized in particular
NATOs use of cluster bombs. It also stated that some of NATOs 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
HRWs 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 NATOs 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 NATOs action was fundamen-
tally humanitarian.... the desire to stop crimes against humanity was
a major goal.90 HRWs recounting of the events leading up to NATOs
87HRW World Report 2000, at 5.
88See www.hrw.org/campaigns/russia/chechnya.
89Washington Post, Nov. 26, 1998, at A31.
90HRW World Report 2000, at 1, 5.
234 chapter ten
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
NATOs 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 NATOs actions would delegiti-
mize them, which HRW clearly does not want to do.
The more fundamental problem in any event is HRWs 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. NATOs 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
91New York Times, May 23, 1999, at 4 p. 17.
92U.S. State Department, Erasing History: Ethnic Cleansing in Kosovo, May 1999.
93OSCE, 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.
94HRW World Report 2000, at 6.
humanrightsism 235
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. Havels speech is thus either politically
95V. Havel, Kosovo and the End of the Nation-State, New York Review 10 June 1999,
at 6.
96Id. at 6.
97See M. Znoj, Czech Attitudes toward the War, 8(#3) East European Constitutional
Review 47 (1999).
98U.N. Environment Programme and U.N. Centre for Human Settlements, The Kosovo
Conflict: Consequences for the Environment (1999), at 17.
236 chapter ten
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
99Editorial, New York Times, 13 June 1999.
100See, e.g., Amnesty International, Yugoslavia: Prisoners of Conscience (1985), at 910:
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.
101E.g., M. Walzer, Just and Unjust Wars (2d ed., 1992).
102E.g. W. Clinton, A Just and Necessary War, New York Times, May 23, 1999 at 417.
103D. Petrovna, The War and the Human Rights Community. 8(#3) East European
Constitutional Review 97 (1999).
humanrightsism 237
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 NATOs actions in Kosovo and the ICTYs 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 worlds most
powerful states against weaker ones. With this transformation, human
rights betrays its own premises and thus becomes its own travesty:
humanrightsism.
104Id. at 99.
105Id. 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
1EU plans far-reaching genocide denial law, The Daily Telegraph (London), Febru-
ary 2, 2007.
2Ottawa Citizen, February 2, 2007.
3Daily Telegraph, February 2, 2007.
4Amnesty International, Yugoslavia: Prisoners of Conscience (London, 1985), pp. 910.
5The 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.
240 chapter eleven
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 insulting7
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 Yugoslavias 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
6Turkish politician fined over genocide denial, www.swissinfo.org/eng, March 9,
2007, 11:51 AM.
7Council of the European Union, 2794th Council meeting, Justice and Home Affairs,
Luxembourg, 1920 April 2007, Council Framework Decision on Combating Racism and
Xenophobia. Council of the European Union Press Release 8364/07 (Presse 77) (EN)
[emphasis added].
8Amnesty International, Yugoslavia: Prisoners of Conscience, p. 10.

genocide denial

laws as secular heresy 241

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
(Websters 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 Gods 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
242 chapter eleven
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 Burkes 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 Krsti 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
9Schenck v. United States, 249 U.S. 47 (1919).
10Kenneth Burke, A Grammar of Motives (Berkeley: University of California Press 1969
[orig. 1945]).

genocide denial

laws as secular heresy 243

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 ICTYs 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. Krsti was
244 chapter eleven
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 Burkes 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.

genocide denial

laws as secular heresy 245

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
11See generally Leonard W. Levy, Blasphemy: Verbal Offence Against the Sacred, From
Moses to Salman Rushdie (New York: Knopf, 1993).
12Blackstone, William, Commentaries on the Laws of England (9th ed.). London: W.
Strahan, 1783. Book 4, ch. 4, p. 44 (emphasis added).
13Levy, Blasphemy, p. 413.
14Levy, Blasphemy, pp. 486487.
246 chapter eleven
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 IIs 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
15Quoted in Amnesty International, Yugoslavia: Prisoners of Conscience (London, 1985),
p. 34.
16Amnesty International, Yugoslavia: Prisoners of Conscience, pp. 2728.
17Council 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).

genocide denial

laws as secular heresy 247

necessary to define religion solely in terms of belief in a supernatural
power, and Durkheims 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
18Text at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=189&C
M=8&DF=17/02/2006&CL=ENG.
248 chapter eleven
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, AIs 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 Europes 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.
19Amnesty International, Public Statement: France: Amnesty International urges
France to protect freedom of expression. AI Index: EUR 21/009/2006 (Public), 18 October
2006.
20Turkish politician fined over genocide denial, www.swissinfo.org/eng, March 9,
2007, 11:51 AM.
21Amnesty International EU Office Press Release, Racism and discrimination
Europes key human rights problem. AI Index: IOR 61/010/2007 (Public), 21 March 2007.
22Human Rights Watch, Annual Report 2007, Genocide Denial: Incitement or Hate
Speech? http://www.hrw.org/wr2k7/essays/shrinking/4.htm.

genocide denial

laws as secular heresy 249

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
rights23 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
23http://web.amnesty.org/pages/aboutai-index-eng.
250 chapter eleven
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
24European Court of Human Rights, Judgment of 23 September 1998, Case of Lehideux
and Isorni V. France, (55/1997/839/1045), para. 47 (emphasis added).
25Council 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.

genocide denial

laws as secular heresy 251

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
26Marc Galanter, Why the Haves Come Out Ahead: Speculations on the Limits of
Legal Change. Law & Society Review 9: 95 (1974).
252 chapter eleven
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, 199295,
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 25,00060,000 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, 199295, 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,
27Todorov, Hope and Memory, p. 123; see also Tzvetan Todorov, Fictions and Truths,
in his Morals and History (Minneapolis: University of Minnesota Press, 1995).
28These studies are summarized and evaluated by Ewa Tabeau and Jakub Bijak, War
Related Deaths in the 199295 Armed Conflicts in Bosnia and Herzegovina: A Critique
of Previous Estimates and Recent Results. European Journal of Population 21: 187215
(2005).
29Tabeau and Bijak, War Related Deaths in the 199295 Armed Conflicts in Bosnia
and Herzegovina.

genocide denial

laws as secular heresy 253

they noted that their figures were least complete and reliable from the
Republika Srpska.
Mirsad Tokaa, 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 199295 casualties
agree that total killed were about 102,000, differing mainly in that the
Tokaa 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 Krsti the ICTY did
proclaim the mass killing at Srebrenica to be genocide, a discussion of this
30BBC 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 Tokaa.
31All 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):
229248.
254 chapter eleven
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 Krsti, 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 Krsti 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
32The 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.
33Krsti trial judgment, para. 540. While the Krsti court uses the definition found in the
ICTYs founding statute, this is drawn directly from the relevant UN treaty definitions.
34Ibid. Para. 544.
35Ibid. Para. 552.
36Ibid. Para. 560.

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laws as secular heresy 255

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 Krsti 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 Krsti 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
37Ibid. Para. 590.
38Ibid. Para. 595.
39William 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 (20012002): 2353, pp. 4547.
256 chapter eleven
made to remove an ethnic or religious community from a specific terri-
tory, especially one of strategic importance.
The Appeals Chamber Decision in the Krsti Case
The defense appealed the findings of the Krsti 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
40Prosecutor v. Radislav Krsti, ICTY Appeals Chamber Judgment, 19 April 2004 (here-
after, Krsti appeal), para. 12.
41Krsti appeal, para. 16.

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laws as secular heresy 257

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 Duli 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
others 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 Krajinik Case
The question of whether genocide occurred in Bosnia became even more
complicated with the decision of the trial chamber in the case of Momilo
Krajinik, one of the most important political actors among the Bosnian
Serbs from 1990 throughout the war. According to the indictment against
him,45 Krajinik
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.
Krajinik 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
42Prosecutor v. Milomir Stakic, ICTY Trial Chamber II, Judgment, 31 July 2003.
43Duli, Utopias of Nation, pp. 1819.
44See, e.g., P. Brass, The Partition of India and Retributive Genocide in the Punjab,
194647: Means, Methods and Purposes, Journal of Genocide Research 5 (2003): 71101.
45Prosecutor v. Momilo Krajinik, Consolidated amended Indictment, 7 March 2002.
258 chapter eleven
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 Krajinik
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 Krajinik was not guilty of genocide or of
complicity in genocide, seemingly inconsistent with the Krsti judgement.
Krsti 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 Krsti 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
46Krajinik judgement, paras. 867869.
47Krsti appeal, paras. 135144.
48International 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.
49Ibid. Paras 296, 297.
50Ibid. Para. 413.

genocide denial

laws as secular heresy 259

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 Mladi.
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 Krsti 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, Krsti) 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, Krajinik, 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 Krsti 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 (Krajinik), nor even
one of the generals who carried it out (Krsti). Presumably, General Ratko
Mladi 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 Krsti
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
51William Schabas, The Odious Scourge: Evolving Interpretations of the Crime of
Genocide. Genocide Studies and Prevention 1 (2006): 93106.
260 chapter eleven
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 Schabass
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
52A classic statement is Edward H. Levi, An Introduction to Legal Reasoning (Chicago:
University of Chicago Press, 1949).
53William Schabas, The Odious Scourge: Evolving Interpretations of the Crime of
Genocide. Paper for presentation at: Ultimate Crime, Ultimate Challenge, Human Rights
and GenocideInternational Conference, Yerevan, Armenia, 2021 April 2005.
54P. Brass, The Partition of India and Retributive Genocide in the Punjab, 194647:
Means, Methods and Purposes, Journal of Genocide Research 5 (2003): 71101.
55Data from Eagle Glassheim, National Mythologies and Ethnic Cleansing: The Expul-
sion of Czechoslovak Germans in 1945, Central European Studies 33 (2000): 463486.

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laws as secular heresy 261

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 Bene 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 Krsti 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 Europes 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 Europes
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
262 chapter eleven
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 (194145); 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 194145 Independent State of Croatia (generally known by its Cro-
atian acronym, NDH) recognized as having been genocide, gives pause
56Human Rights Watch, Annual Report 2007, Genocide Denial: Incitement or Hate
Speech? http://www.hrw.org/wr2k7/essays/shrinking/4.htm.
57Todorov, Hope and Memory, p. 143.
58See Robert Hayden, Mass Killings and Images of Genocide in Bosnia, 194145 and
199295, in Dan Stone, ed., The Historiography of Genocide. Palgrave, 2007.

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laws as secular heresy 263

for thought. Judged by absolute numbers, those numbers relative to the
Serb population in the NDH, and the ideology of the Ustaa 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 199091 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 194145 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
59Recounting 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): 367390.
60See generally Katherine Verdery, The Political Live of Dead Bodies (New York: Colum-
bian University Press, 1999).
61Michael J. Wohl and Nyla R. Branscombe, Importance of Social Categorization for
Forgiveness and Collective Guilt Assignment for the Holocaust, pp. 284305 in Nyla R.
264 chapter eleven
Both of these examples, the political use of genocide accusations by
Serb politicians in 199091, 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. 294298.
62Helsinki 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.
63E.g., Amnesty International, Yugoslavia: Prisoners of Conscience, pp. 2728.

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laws as secular heresy 265

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 Yugoslavias 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.
64See Steven Haliczer, Inquisition and Society in the Kingdom of Valencia, 14781834
(Berkeley: University of California Press, 1990), pp. 6667.
CHAPTER TWELVE
WHATS 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
1The Tribunal welcomes the parties commitment to justice. Joint statement by the
President and the Prosecutor. http://www.icty.org/sid/7220. Oddly enough, the ICTYs
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 [Goldstones] 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.
268 chapter twelve
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 Tribunals 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 Pontes 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 Kosti (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
2http://www.un.org/icty/pressreal/2005/p944-e.htm.
3http://www.un.org/icty/pressreal/2005/speech/cdp-goldmansachs-050610-e.htm.
4Since 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.
5Since I return to the data from this poll throughout this paper, further information
on it is found in the Appendix.
what

s reconciliation got to do with it? 269

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. Kosti, 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 Pals 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
270 chapter twelve
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 Keyness
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 Spains integration into
NATO and the European Community on prosecution of the major surviv-
ing actors in Francos regime, and had in the meantime applied economic
sanctions as conditionality for bringing about this prosecution. There
is little doubt that Spains 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 Miloevi
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, Keyness (1920: 225) condemnation of the puni-
tive policies of the Versailles treaty is appropriate:
what

s reconciliation got to do with it? 271

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 mans
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 ICTYs 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 Miloevi 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, whats 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;
272 chapter twelve
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? Klarins 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 Kosti (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
6http://archive.idea.int/press/documents/SEE_Survey_Press_Release_English.pdf.
7Http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/434203.stm.
8I 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 186165 as the War of Northern Aggression.
what

s reconciliation got to do with it? 273

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%.
Miloevi and other national leaders: utterly unsurprisingly, opinions on
the wartime national leaders also differed primarily by national group.
Thus Miloevi 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 Izetbegovi 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 Tudjmans 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
9I 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
274 chapter twelve
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 Miloevi 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 Miloevi 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 Miloevi 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 Krsti 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.
10http://www.icty.org/sid/324#bringing.
what

s reconciliation got to do with it? 275

Hagan and Sanja Kutnjak Ivkovi (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 sides own victim-centred narrative (Clark 2007: 483).
Jelena Suboti (2009: 148149) 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 Kostis 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 ICTYs 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
11Sarajevo casualty numbers are from a report prepared for the Milosevi case by the
Prosecutors expert witness Ewa Tabeau: http://www.icty.org/x/cases/slobodan_milosevic/
prosexp/bcs/mil-rep030818b.htm.
276 chapter twelve
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 Subotis 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 Djindji, who arrested and extradited Miloevi and was
assassinated at least in part because he was cooperating with the ICTY,
is criticized by Suboti (2009: 4546) 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-
what

s reconciliation got to do with it? 277

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
Miloevi to the Hague stopped broadcasting the trial on state television
because the trial made the government look bad. In fact, it was Miloevis
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; Jovi 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 Miloevi, 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
12Rather ironically, his former party, the SPS, is, in January 2011, part of the govern-
ment, with his former close associate Ivica Dai Minister of the Interior. As of early Janu-
ary 2010, it was reported that Dais name had been removed from the list of Miloevi
associates banned from entering the U.S., so that he could be invited to the National
Prayer Breakfast.
278 chapter twelve
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 ICTYs 200607 budget was
$276 million and its 200809 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 200809, 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
13Date from Annual Reports of the Administrative Office of Pennsylvania Courts and
Court Finances Fiscal Year 200708, 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.
14Data from 2008 Caseload Statistics of the Unified Judicial System of Pennsylvania,
available at http://www.aopc.org/T/AOPC/ResearchandStatistics.htm.
15Date from ICTY website, The Cost of Justice, http://www.icty.org/sid/325.
16Date from ICTY website, Key Figures, http://www.icty.org/sections/TheCases/
KeyFigures.
17ICTY, The Cost of Justice, http://www.icty.org/sid/325.
18On 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).
what

s reconciliation got to do with it? 279

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&Hs 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 200809 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 200809.
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 $100 million, thus
less than the ICTY for that year. Comparison to ICTY: The OSCE mission
19http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/BOSNIAHE
RZEXTN/0,,contentMDK:20629017~menuPK:362034~pagePK:141137~piPK:141127~theSiteP
K:362026,00.html.
20Specifically, US$ 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.
21UNDP B&H Info Pack 2010, p. 10; available at http://www.undp.ba/index.aspx?
PID=3&RID=1.
22http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48d766.
23http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e48d9f6.
24UNHCR Global Report 2008 Serbia, http://www.unhcr.org/4a2e14ee2.html.
25UNHCR Global Report 2008 Bosnia, http://www.unhcr.org/4a28d1012.html.
280 chapter twelve
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&Hs 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.
26Figures 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.
27http://www.ohr.int/ohr-info/gen-info/default.asp?content_id=38608.
what

s reconciliation got to do with it? 281

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. Clausewitzs 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
28See http://www.publicinternationallaw.org/areas/justice/tribunals/index.html.
29However, not sufficiently cynical to avoid some amazement at the various machina-
tions recounted in Cees Wiebes 2003 study, Intelligence and the War in Bosnia, 199295, 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.
282 chapter twelve
(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
30I 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 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 humanists equivalent of Gods
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 Kosti in his book Ambivalent Peace (2007)
was done by a professional survey research company, PULS, in Sarajevo
31Human Rights Watch, Human Rights Trump Sovereignty in 1999, press release,
Dec. 9, 1999.
32Human Rights Watch, Civilian Deaths in the NATO Air Campaign, Summary,
pp. 78; http://www.hrw.org/reports/nato.
Acknowledgements: Revision of paper prepared for the conference on The Miloevi
Trial: An Autopsy, Indiana University School of Law, Bloomington, IN, Feb. 1821 2010. I
am grateful to two anonymous reviewers.
284 chapter twelve
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, Biha 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.
Kosti also engaged in elite interviews, which he used to intepret the sur-
vey data. All told, Kostis 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): 1540.
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): 226259.
. 2007. Moral Vision and Impaired Insight: the Imagining of Other Peoples Communi-
ties in Bosnia. Current Anthropology 48: 105131.
. 2008. Genocide Denial Laws as Secular Heresy: A Critical Analysis with Reference
to Bosnia. Slavic Review 67: 384407.
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.
what

s reconciliation got to do with it? 285

Ivkovi 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.
Jovi, 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: 8996.
Kosti, 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: 592623.
Peskin V., & Boduszynski, M. (2003). Croatias 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, 544.
Suboti, 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, 199295. 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
1There 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).
2Cf., however, Sammy Smoohas 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.
290 chapter thirteen
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 Andersons 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-Watsons 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. Andersons wording is much more passive in structure
than Seton-Watsons, an image living in peoples minds as opposed to
3Narod (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).

democracy

without a demos? 291

people considering themselves or acting in a particular way. A constitu-
tion may reflect an image in Andersons 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 Bosnias 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 199092, and
even like the ones that failed in federal Yugoslavia in 198991. 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 (drava) that drove them, and the
292 chapter thirteen
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 Hegels 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 199192, 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 republics 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
4Results of survey conducted by the Zagreb newspaper Veernji list as reported by the
internet service of Belgrade independent radio B92, January 14, 2002).

democracy

without a demos? 293

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 199295 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 199295, 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
(Panti 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
5The 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 (Baevi et al. 1991), however, the wars had already
begun.
294 chapter thirteen
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 199295 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 Bosnias 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: 101102 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

democracy

without a demos? 295

(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 (Baevi 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) Bosnias ethno-national divisions as
background for the analysis of the international communitys 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.
Bosnias 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
6Accounts 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 Miloevi and other Serb nationalists (Ramet 2000: 476478); 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 Miloevi regime, the fact remains that rather than unite in order to
defeat Miloevi, the leaderships of the other republics pursued classic central European
ethnonationalism in order to create independent states that would be ethnocracies (see,
e.g., Miri 1996, Dragevi-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.
296 chapter thirteen
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
Radovanovi 2002), with armed resistance leading to military conquest
and mass expulsion (Croatia) or military rule (Kosovo 198999), 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: 22743 and 267302; 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 Yugoslavias disin-
tegration showed Bosnias 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: 4656). 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
Arnautovi 1996). And from the late 19th century, mass violence between
these groups resulted every time that the larger polity encompassing Bos-
nia broke down: 187578 (withdrawal of the Ottoman Empire [Lampe 1996:
6566]), 191418 (collapse of Austro-Hungarian empire [Lampe 1996: 106
107]), 194145 (collapse of first Yugoslavia [M. Djilas 1980, Bogosavljevi
2000]) and 199092 (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
7The 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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without a demos? 297

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: 125127), the process now called ethnic cleansing.8 Bosnia
was claimed by this Croatian state, and Serbs formed 72% of the victims
there (Bogosavljevi 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 (Arnautovi
1996: 1112; 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
8Jews and Gypsies were to be killed, and most were: 78% of all Jews in Yugoslavia and
31% of all Gypsies (Bogosavljevi 2000: 151).
298 chapter thirteen
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: 9091; Arnautovic 1996: 12; Burg &
Shoup 1999: 4956).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 CIAs 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 republics 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
9The relevant electoral laws are reprinted as appendixes in Arnautovi 1996).
10Slubeni List SRBiH broj 21/90 (31 July 1990), reprinted in Arnautovi 1996: 180.
11This 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 Bosnias 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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without a demos? 299

its interests were threatened by and directly at odds with the other eth-
nic groups (Central Intelligence Agency 2002: 122123).
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: 7679, Hayden
1999: 9394). 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
300 chapter thirteen
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 Governments 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:
590591, Djordjevi 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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without a demos? 301

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 199192 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 Lijpharts 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
302 chapter thirteen
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: 5051). 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
12In 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 Independences 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, Nehrus rhetoric of ethnic and political unity was rejected by Jinnahs 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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without a demos? 303

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: 348360), 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:
136139); 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: 123139). The enumerated powers of the Bosnian government (as
opposed to all other powers, reserved to the Entities) are:
304 chapter thirteen
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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without a demos? 305

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 others 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
Bosnias 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 Bosnias 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)
306 chapter thirteen
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 PICs next meeting, in December 1997, that body found it necessary to
grant the HR paramountcy over Bosnian elected officials, welcoming the
HRs 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 HRs 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
13Virtually 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 Departments 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.
14PIC 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).
15PIC 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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without a demos? 307

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 HRs 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 countrys 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
16OHR Bulletin 65, 06 February 1998.
17OHR Press Release, Coat of Arms of BiH, Sarajevo, 20 May 1998.
18Id.
19Http://www.ohr.int/ohr-dept/press/bh-media-rep/round-ups/default/asp/content_
id=6432 (26 Nov. 2001).
20See, e.g., OHR Press Release, Removal from Office of Nikola Poplasen, Sarajevo,
March 5 1999 (www.ohr.int/press/p990305b.htm).
308 chapter thirteen
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 Representatives 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,
21Proclamation of the Law on Citizenship of Bosnia and Herzegovina, Office of the
High Representative, Sarajevo, December 1997.
22http://www.ohr.int/press/p20000113a.htm.
23http://www.ohr.int/roundup/bih010301.htm#2.
24Joint OHR/ OSCE Press Release, 28 July 2000. Www.ohr.int/press/p20000728a.htm.

democracy

without a demos? 309

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 HRs 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
25All of the constitutions involved, and the decisions of the Constitutional Court, are
available at http://www.ohr.int/ohr-dept/legal/const/.
310 chapter thirteen
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: 258277]). 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 HRs 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 PICs statement that
welcomes the readiness of Bosnia and Herzegovinas political leaders to
finally engage each other in a spirit of good [sic] with the aim of taking the
26Agreement 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.

democracy

without a demos? 311

country forward towards a European future built on the rule of law.27 Not
only did the leaders not agree, but the HRs 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 HRs 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
27Communique by the PIC Steering Board, 27 March 2002. www.ohr.int/print/?content_
id=7241.
312 chapter thirteen
precedent in any event. There is also no evidence that the HR knew that
the constitution of the Yugoslav federation had failed in 198991 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: 2752).
In essence, the HRs 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 (198991)
and then in Bosnia itself (199092). 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
28See the text of the Agreement of August 13 2001, http://www.president.gov.mk/eng/
info/dogovor.htm.
29A 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.

democracy

without a demos? 313

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 HRs 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. IIIVIII).
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 Tocquevilles Democracy in Amer-
ica), the authors of the Bosnian constitutions seem primarily concerned
314 chapter thirteen
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 OHRs 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 Peoples 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: 120122 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
316 chapter thirteen
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:
Arnautovi, Suad (1996). Izbori u Bosni I Hercegovini 90. Sarajevo: Promocult.
Austin, Granville (2000). Working a Democratic Constitution: The Indian Experience. Delhi:
Oxford University Press.
Baevi, Ljiljana (1991). Jugoslavija izmedju Prolosti I Budunosti, in Lj. Baevi et al.,
Jugoslavija na Kriznoj Prekretnici. Beograd: Institut Drutvenih 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: 731763.
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.
Bogosavljevi, Srdjan (2000). The Unresolved Genocide, in Neboja 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, 199095, 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.
Djordjevi, Dimitrije (1989). Migrations during the 19121913 Balkans Wars and world War
One, in Ivan Nini, ed., Migrations in Balkan History. Belgrade: Serbian Academy of
Sciences and Arts.
Dragovi-Soso, Jasna (2002). Saviors of the Nation: Serbias Intellectual Opposition and the
Revival of Nationalism. Montreal: McGill-Queens University Press.
Goati, Vladimir (1992). Politiki ivot Bosne I Hercegovine 1989992, in S. Bogosavljevi
et al., Bosna I Hercegovina izmedju Rata I Mira. Beograd: Institut Drutvenih Nauka.

democracy

without a demos? 317

(1991). Stavovi Gradjana o Promenama Poitikog Sistema: O Dravnom Uredjenju I
Viepartizmu, in Lj. Baevi et al., Jugoslavija na Kriznoj Prekretnici. Beograd: Institut
Drutvenih 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: 2535.
(1996b). Schindlers Fate: Genocide, Ethnic cleansing and Population Transfers.
Slavic Review 55: 727748 and 767778.
(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): 549573 (1999 cover date; published
5/01).
(2002). Antagonistic Tolerance: Competitive Sharing of Religious Sites in South Asia
and the Balkans. Current Anthropology 43:205231.
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. 215224. New York: Library of America.
(1989 [1861b]). Special Message to Congress, July 4, 1861 In Lincoln: Speeches, Letters,
Miscellaneous Writings vol. 2, pp. 246261. New York: Library of America.
(1989 [1865]). Second Inaugural Address. In Lincoln: Speeches, Letters, Miscellaneous
Writings vol 2, pp. 686687. New York: Library of America.
Miri, Jovan (1996). Demokracija u Postkomunistiim Drutvima. 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.
Panti, Dragomir (1991). Nacionalna Distanca Gradjana Jugoslavije, in Lj. Baevi et al.,
Jugoslavija na Kriznoj Prekretnici. Beograd: Institut Drutvenih Nauka.
Radovanovi, Zoran (2002). Kakav je bio poloaj administrativo izbrisanih junjaka u
Sloveniji u poslednjoj deceniji, Danas (Beograd), 2528 June.
Ramet, Sabrina (2000). Revisiting the Horrors of Bosnia: New Books about the War. East
European Politics & Societies 14: 475486.
Ron, James (2003). Frontiers and Ghettos; State Violence in Serbia and Israel. Berkeley: Uni-
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: 389413.
(1997). Ethnic Democracy: Israel as an Archetype. Israel Studies 2: 198241.
Stavrianos, l. s. (2000). The Balkans since 1453. New York: NYU Press.
Sudetic, Chuck (1998). Blood and Vengeance: One Familys Story of the War in Bosnia. New
York: Penguin.
Trifunovska, Sneana (1994). Yugoslavia through Documents. Dordrecht: Nijhoff.
Varshney, Ashutosh (1993). Contested Meanings: Indias National Identity, Hindu Nation-
alism and the Politics of Anxiety. Daedalus 122 (#3): 227261.
World Bank (2002). Bosnia and Herzegovina: Local Institutions and Social Capital Study.
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 countrys
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
1Steven Burg and Paul Shoup, The War in Bosnia Herzegovina (1999) provide excellent
discussions of the various internationally mediated constitutional proposals for Bosnia,
199294. 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.
2I 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. 123140.
320 chapter fourteen
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
3Gearid Tuathail (Gerard Toal), John OLoughlin, and Dino Djipa, Bosnia-
Herzegovina Ten Years after Dayton: Constitutional Change and Public Opinion, Eurasian
Geography and Economics, 2006, 47, No. 1, pp. 6175.
the proposed 2009 amendments on the bosnian constitution321
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
4See, e.g., Sofia Sebastian, State Building in Divided Societies: The Reform of Dayton
in Bosnia and Herzegovina, Journal of Intervention & Statebuilding 4: 323344 (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: 125136 (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.
5While the invocation is admittedly sardonic, Im 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,
322 chapter fourteen
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.
6I 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.
7Vance & Owen, International Conference on the Former Yugoslavia, doc. STC/2/2,
27 Oct. 1992. The three parties were, respectively, Muslims, Serbs and Croats.
8R. 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.
the proposed 2009 amendments on the bosnian constitution323
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 187578, 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
9The 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: 105131 (2007).
10This map can be seen at http://corona.eps.pitt.edu/Website/yugoslavia.html.
11See Imagined Communities and Real Victims: Self-Determination and Ethnic Cleans-
ing in Yugoslavia. American Ethnologist, 23(4): 783801 (Nov. 1996).
324 chapter fourteen
With this in mind, the opinion by the Venice Commission, the Council
of Europes 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 dont, and wont, 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-
12European 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.
13To 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-
wotizs Ethnic Groups in Conflict, Manns 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.
the proposed 2009 amendments on the bosnian constitution325
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
326 chapter fourteen
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
the proposed 2009 amendments on the bosnian constitution327
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) constitutions 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
328 chapter fourteen
thereby form a caucus of that group. The HoPs 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 Karadzics
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 Momilo Krajnik, declared a six-hour recess in accordance with the
rules of the Parliament. However, the Muslims and Croats reconvened
the proposed 2009 amendments on the bosnian constitution329
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,
14See Hayden, Blueprints for a House Divided, pp. 9697.
15Figures on Bosniak membership in HoReps is from Tihi trai od Ustavnog Suda BiH
ukidanje entitetskog glasanja, Dnevni Avaz 29.11.09.
330 chapter fourteen
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.
the proposed 2009 amendments on the bosnian constitution331
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 1s 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.
332 chapter fourteen
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 constitution333
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 1s plan of total supremacy of the HoReps.
334 chapter fourteen
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-
the proposed 2009 amendments on the bosnian constitution335
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
Manns 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 Bosnias modern history is sim-
ply a manifestation of a kind of conflict found in other post-colonial or
post-imperial settings: e.g. Anatolia 192023, 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 199195, 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
336 chapter fourteen
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-
16See Robert M. Hayden, Schindlers Fate: Genocide, Ethnic Cleansing and Popula-
tions transfers, Slavic Review 1996.
17Data 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): 226259 (May 2005).
18See, e.g., Robert M. Hayden, Antagonistic Tolerance: Competitive Sharing of Reli-
gious Sites, Current Anthropology 2002.
the proposed 2009 amendments on the bosnian constitution337
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,
338 chapter fourteen
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
doesnt 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?
Mea Selimovi, the greatest Bosnian writer other than Ivo Andri and
more acceptable to Bosniaks than was Andri (Selimovi was on the 5
KM banknote while Andris 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 wouldnt 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
19A 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).
the proposed 2009 amendments on the bosnian constitution339
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 Miloevi 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
19811999 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
20The quotes are from the superb English translation by Bogdan Raki and Stephen
Dickey of Dervi i smrt, as Death and the Dervish (Northwestern University Press, 1996),
pp. 408, 123 and 236, respectively.
340 chapter fourteen
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 1s attempt to create a unitary state under
Bosniak control and Butmir 2s manifestation of plus a change, plus cest
la mme 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 Bosnias 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 cant 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
the proposed 2009 amendments on the bosnian constitution341
to negotiate with us...it is in no ones 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 199192, 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
21The 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 Onions story right after the 2000 Presidential elections
in the USA, that Serbian president Vojislav Kotunica 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.
22Wesley Clark, Vague at the Hague, Washington Monthly, July/August 2010. Gen.
Clarks 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.
342 chapter fourteen
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 authors 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 Bosnias
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 etniko ienje), 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
1This paper has benefitted from the comments of Milica Baki-Hayden, Jennifer Cash,
Elissa Helms, Bogdan Raki, 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.
2http://www.ohr.int/ohr-info/maps/.
344 chapter fifteen
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 AAAs definition of human rights is broad, reflecting a
commitment to human rights consistent with international principles but
not limited by them.5
3In 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).
4While 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.
5Declaration on Anthropology and Human Rights, Human Rights Committee, American
Anthropological Association, adopted by the AAA membership June 1999. www.aaanet.org/
stmts/humanrts.htm.
moral vision and impaired insight 345
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
6American 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.
7IUAES, Proposed Replacement Statement for the Unesco Documents on Biological
Aspects of Race. http://www.leidenuniv.nl/fsw/iuaes/08-race.htm.
8The main exception was Serbia in the 1990 elections, at the end of communism, pro-
nounced by international monitors as free but not fair.
9Macedonia 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
346 chapter fifteen
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: 147148). For his part, Clifford Geertz (2000 [orig.
1968]: 4041) 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.
moral vision and impaired insight 347
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 Andersons 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 Geertzs 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 Bosnias 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
10A reviewer of this paper suggested that Geertzs 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.
348 chapter fifteen
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: 164178). 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.
326330). 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
(Arnautovi 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-
moral vision and impaired insight 349
tics in the first Yugoslav state (Banac 1983). In Bosnia, the major military
forces in World War II other than Titos Partisans were based on ethno-
nationalism (see Duli 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: 352353) 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
350 chapter fifteen
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 Geertzs 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 Bosnias people, who had been divided by the 199195
war (see Maka 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.
moral vision and impaired insight 351
The bridge has been a key symbol of Bosnia since the international
success of Ivo Andris historical novel The Bridge on the Drina (Andri
1959), which helped earn Andri the Nobel prize for literature in 1961. The
metaphor stands in part for Bosnias (and Yugoslavias) 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 Fines popular his-
tory (1994) is a picture of the bridge in Mostar with the notation now
destroyed, on Susan Woodwards 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 Wests 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 books 1000 pages. A stylized version of the Mostar bridge is even
on the cover of the Bjeli and Savis (2002) collection that critiques ste-
reotypes of the Balkans. To rebuild it was thus meant to show how the
connections between Bosnias 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 Europes 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
11At 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 (riani) and rebels (bunjevce) (Pupovac 1999: 181). Yet whatever
the naming, the distinction seems to have remained constant.
12http://europa.eu.int/comm/economy_finance/euro/notes_and_coins/notes_main_
en.htm.
352 chapter fifteen
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-
tons clash of civilizations model of geopolitical dynamics. Thus the
new Old Bridge in Mostar was said to symbolize Europes inclusion
of Islam as well as Bosnias 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 Tihi, 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
13Paddy Ashdown was almost certainly unaware of the close similarity between his
speech and that of (of all people) Slobodan Miloevi, 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.
Miloevi 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 Miloevi 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: 8889.
14Bosniaks (Bonjaci) 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
(Bonjak) 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).
15http://www.predsjednistvobih.ba/saop/default.aspx?cid=4280&lang=bs.
16And a writer of some controversy. Foreign Minister Vuk Drakovi 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 199091, with good reason, as
an extreme nationalist alternative to Miloevis socialists. Nonetheless, Drakovi seemed
to have been sobered, and moderated in his nationalism, by the war in Bosnia.
moral vision and impaired insight 353
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 2425 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
(Maka 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 citys Croats are reported to have ignored
the whole reconstruction process (Maka 2005: 6566).
Further, the Mostar bridge, on the Neretva River, is not, in fact, the
one at the center of Ivo Andris novel, which is the 16th century Otto-
man bridge on the Drina River, in Viegrad.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 Viegrad. Yet if the bridge is the irresistible symbol of Bosnia, the
fate of the bridge on the Drina that was the focus of Ivo Andris 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 Viegrad 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
17This displacement of the concrete manifestation of the metaphor may match the
displacement of Ivo Andri himself from Bosnia. Andri 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 Andri.
Despite the ubiquity of the bridge metaphor, Andri is controversial among Bosniaks for
writings that some see as disparaging Muslims (see Maglajli 2000). Thus while the writer
Mea Selimovi, discussed below, appears on the Bosnian currency, Nobel laureate Andri
does not. Replacing the Viegrad bridge with that in Mostar thus preserves the metaphor
while concealing the writer.
354 chapter fifteen
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 Bosnias peoples eroded due to lack of financial support
from the same international community.18
Indeed, as a bridge linking Bosnias 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-
18The Viegrad 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.
19Mostar 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.
20Bruce 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).
moral vision and impaired insight 355
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 epe 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 Bosnias 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 Bosnias people. They are therefore not
really equivalent, because Andris 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 Bosnias 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 communitys willingness to pay for
symbolism but not for infrastructure. To give one striking example, the
200405 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
356 chapter fifteen
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
21A 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.
22This 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.
23And, 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 (Kadijevi 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).
moral vision and impaired insight 357
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 republics 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 komiluk (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: 118126). 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: 7980). 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
24Results of survey conducted by the Zagreb newspaper Veernji list as reported by the
internet service of Belgrade independent radio B92, January 14, 2002).
358 chapter fifteen
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 (Arnautovi 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,
191941; so-called Independent State of Croatia, 194145; second Yugosla-
via, 194392).
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: 187578 (withdrawal of the Otto-
man Empire [Lampe 1996: 6566]), 191418 (collapse of Austro-Hungarian
empire [Lampe 1996: 106107]), 194145 (collapse of first Yugoslavia [M.
Djilas 1980, Bogosavljevi 2000]). In 199091, 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).
Bosnias 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 (Mahmutehaji 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., Lovrenovi 2001) but
was especially reinforced by some foreign intellectuals, who had studied
Bosnias Muslims and were very much aware of the dangers involved in
partitioning Bosnia. The basic thesis was stated succinctly in one of the
moral vision and impaired insight 359
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: 89).
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 Miloevi 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 Rieffs accusations of the Wests
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
Rieffs prescription then and do not now, since they reject the Bosnian
360 chapter fifteen
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
Bosnias 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. Miloevi 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 Mea
Selimovi, 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 (Selimovi 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, Selimovi (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.
25See, e.g., http://europa.eu.int/comm/publications/posters/images/aff2004_en.jpg.
26The European Union at a Glance. http://europa.eu.int/abc/index_en.htm.
moral vision and impaired insight 361
The same Ivo Andri 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 (Andri 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 194145 had seen
terrible inter-ethnic conflict, with Serbs suffering the greatest numbers
and percentages of victims (Duli 2005; Bogosavljevi 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 (Duli 2005, Dedijer & Mileti 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 194145 (Bogosavljevi 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 199295,
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
362 chapter fifteen
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
moral vision and impaired insight 363
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
Andersons 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 Andersons 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 199091: a phrase I heard often then was that well 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 isnt Bosnia involved in the war between
Serbia and Croatia? Because thats only the semi-finals, and weve 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 Bosnias 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
364 chapter fifteen
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 Mea Selimovi is that Bosnians try to hold back
time (1996: 408); that their situation is so complicated that it wouldnt 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 (Selimovi 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
27Http://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.
28Polls reported in Tuzla Night Owl and carried on Justwatch listserve 6/1/2004 (http://
listserv.buffalo.edu/cgi-bin/wa?A2=ind0406&L=justwatch.
moral vision and impaired insight 365
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,
29Figures 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).
30OHR BiH Media Round-up, 5/8/2004 (link from www.ohr.int).
31UNHCR, 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).
366 chapter fifteen
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 Bosnias 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. Keyness 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,
32Poll conducted by Strategic Marketing & Media Research Institute (SMMRI), Bel-
grade; data cited by permission of SMMRI.
33In 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.
moral vision and impaired insight 367
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 Bosnias 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),
34Perhaps 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.
35American 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.
36Mission of the AAA, Section 1, http://www.aaanet.org/committees/lrp/lrplan.htm.
368 chapter fifteen
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.
Cassandras 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). Geertzs 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
moral vision and impaired insight 369
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
Geertzs 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: 4041).
This statement is, of course, a reiteration of the classic position on the
need to separate, as much as it is possible to do, ones scientific work from
ones political positions. The most famous statement is Webers (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
370 chapter fifteen
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 Geertzs 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 elses, 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-Jimnez 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-Jimnez 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
communitys 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-
moral vision and impaired insight 371
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.
References
Anderson, Benedict (1991). Imagined Communities. London: Verso.
Andri, Ivo (1959). The Bridge on the Drina. London: George Allen & Unwin.
Arnautovi, Suad (1996). Izbori u Bosni i Hercegovini 90. Sarajevo: Promocult.
Ashdown, Paddy (2004). High Representatives Speech to the Islamic Conference Research
Centre for Islamic History, Art and Culture (IRCICA) Symposium in Mostar, July 22,
2004 (http://www.ohr.int/print/?content_id=32994).
Baevi, Ljiljana et al. (1991). Jugoslavija na kriznoj prekretnici. Belgrade: Institut drutvenih
nauka.
Baki-Hayden, Milica (1995). Nesting Orientalisms: The Case of Former Yugoslavia. Slavic
Review 54: 917931.
Banac, Ivo (1983). The National Question in Yugoslavia. Ithaca: Cornell University Press.
Bildt, Karl [Carl] (1999). Zadatak mir. Belgrade: Radio B92.
Bjeli, Duan and Obrad Savi, eds. (2002). Balkan as Metaphor. Cambridge, MA: MIT
Press.
Bjelopoljac, Damir (2004). Andrievim mostovima preti ruenje. Danas 7 August 2004
(www.danas.co.yu/20040807/vikend3/html).
Bogosavljevi. Srdjan (2000). The Unresolved Genocide. In N. Popov, ed., The Road to War
in Serbia. Budapest: Central European University Press.
372 chapter fifteen
Bougarel, Xavier (1996a). Bosnia and Herzegovina: State and Communitarianism, in
D. Dyker and I. Vejvoda, Yugoslavia and After: A Study in Fragmentation, Despair and
Rebirth. London: Longman.
(1996b). Bosnie: Anatomie dun Conflit. Paris: La Dcoverte.
Bowman, Glenn (2001). The Violence in Identity. In Bettina Schmidt and Ingo Schrder,
eds., Anthropology of Conflict and Violence. London: Routledge.
Brass, Paul (2003). The Partition of India and Retributive Genocide in the Punjab, 194647:
Means, Methods and Purposes. Journal of Genocide Research 5: 71101.
Bringa, Tone (1995). Being Muslim the Bosnian Way. Princeton: Princeton University
Press.
Bugarel, Ksavije [Bougarel, Xavier] (2004). Bosna: anatomija rata. Beograd: Edicija Re
(revision by the author and translation of Bougarel 1996b).
Campbell, David (1998). National Deconstruction: Violence, Identity and Justice in Bosnia.
Minneapolis: University of Minnesota Press.
(1999). Apartheid Cartography: The Political Anthropology and Spatial Effects of
International Diplomacy in Bosnia. Political Geography 18: 395435.
Central Intelligence Agency (2002, 2003). Balkan Battlegrounds: A Military History of the
Yugoslav Conflicts, 19901995. Washington, DC: CIA Office of Russian & East European
Analysis.
Cohn, Bernard (1987). The Census, Social Structure and Objectification in South Asia, in
B. Cohn, An Anthropologist Among the Historians and Other Essays, pp. 224254. Delhi:
Oxford University Press.
Dedijer, Vladimir and Antun Mileti (1990). Genocid nad Muslimanima, 194145. Sarajevo:
Svjetlost.
Denich, Bette (1994). Dismembering Yugoslavia: Nationalist Ideologies and the Symbolic
Revival of Genocide. American Ethnologist 21: 367390.
(2005). Debate or Defamation? Comment on the publication of Cushmans Anthro-
pology and Genocide in the Balkans, Anthropological Theory 5: 555558.
Dirks, Nicholas (2001). Castes of Mind: Colonialism and the Making of Modern India. Prince-
ton: Princeton University Press.
Donia, Robert (2006). Sarajevo: A Biography. Ann Arbor: University of Michigan Press.
Donia, Robert and John Fine (1994). Bosnia & Herzegovina: A Tradition Betrayed. New York:
Columbia University Press.
Duizjings, Ger (2002). History and Reminders in East Bosnia. Available only on line, link
from www.srebrenica.nl.
Duli, Tomislav (2005). Utopias of Nation: Local Mass Killing in Bosnia and Herzegovina,
194142. Uppsala: Uppsala Universitet.
Friedman, Victor (1996). Observing the Observers: Language, Ethnicity and Power in the
1994 Macedonian Census and Beyond, Appendix A in B. Rubin, ed., Toward Compre-
hensive Peace in Southeast Europe: Conflict Prevention in the South Balkans. New York:
Twentieth Century Fund Press.
Geertz, Clifford (1973a). Deep Play: Notes oh the Balinese Cockfight. In C. Geertz, The
Interpretation of Cultures. New York: Basic Books.
(1973b). Thick Description: Toward an Interpretive Theory of Culture. In C. Geertz,
The Interpretation of Cultures. New York: Basic Books.
(2000 [orig. 1968]). Thinking as a Moral Act: Ethical Dimensions of Anthropological
Fieldwork in the New States. In C. Geertz, Available Light: Anthropological Reflections
on Philosophical Topics. Princeton: Princeton University Press.
(2000a). Passage and Accident: A Life of Learning. In C. Geertz, Available Light:
Anthropological Reflections on Philosophical Topics. Princeton: Princeton University
Press.
Gledhill, John (2006). Our New Initiative on Ethics: a Statement from the Chair. Associa-
tion of Social Anthropologists Ethical Guidelines, http://www.theasa.org/ethics.htm
(Accessed June 2006).
moral vision and impaired insight 373
Guha, Sumit (2003). The Politics of Identity and Enumeration in India, 16001990. Com-
parative Studies in Society & History 45: 148167.
Gupta, Akhil and James Fergusun (1997). Beyond Culture: Space, Identity and the Politics
of Difference, in Akhil Gupta and James Ferguson, Culture, Power, Place: Explorations in
Critical Anthropology. Durham, NC: Duke University Press.
Hammel, Eugene (1993). The Yugoslav Labyrinth. Anthropology of East Europe Review 11
(1, 2): 3947, 1993. Special Issue: War among the Yugoslavs.
(1994). Meeting the Minotaur. Anthropology Newsletter 35 (4): 48.
Harper, Ian and Alberto Corsin-Jimnez (2005). Developing anthropological ethics in the
ASA (Draft, June 2005), available via link from http://www.theasa.org/ethics.htm (As
of June 2006).
Hayden, Robert M. (1992). Constitutional Nationalism in the Formerly Yugoslav Repub-
lics. Slavic Review 51: 654.
(1994). Recounting the Dead: The Discovery 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: SAR Press.
(2002a). Intolerant Sovereignties and Multi-multi Protectorates: Competition over
religious Sites and (In)tolerance in the Balkans. In C. M. Hann, ed., Postsocialism: Ideals,
Ideologies and Practices in Eurasia. New York: Routledge.
(2005). Democracy Without a Demos? The Bosnian Constitutional Experiment and
the Intentional Construction of Nonfunctioning States. East European Politics & Societ-
ies 19: 226259.
Horowitz, Donald (1985). Ethnic Groups in Conflict. Berkeley: University of California
Press.
Jansen, Stef (2000). Victims, Underdogs and Rebels: Discursive Practices of Resistance in
Serbian Protest. Critique of Anthropology 20: 393420.
(2001). The Streets of Beograd: Urban Space and Protest Identities in Serbia. Political
Geography 20: 3555.
(2002). The Violence of Memories: Local Narratives of the Past after Ethnic Cleans-
ing in Croatia. Rethinking History 6: 7793.
(2005). National Numbers in Context: Maps and Stats in Representations of the Post-
Yugoslav Wars. Identities 12: 4568.
(2005a). Whos Afraid of White Socks? Towards a Critical Understanding of Post-
Yugoslav Urban Self-Perceptions. Ethnologia Balkanica 9: 151167.
Jenkins, Laura (2003). Another People of India Project: Colonial and National Anthropol-
ogy. Journal of Asian Studies 62: 11431170.
Kadijevi, Veljko (1993). Moje vidjenje raspada. Beograd: Politika.
Karakasidou, Anastasia (1997). Fields of Wheat, Hills of Blood: Passages to Nationhood in
Greek Macedonia, 18701990. Chicago: University of Chicago Press.
Kempner, Joanna, Clifford Perlis and Jon Mertz (2005). Forbidden Knowledge. Science
307: 854 (11 February 2005).
Kertzer, David and Dominique Arel (2002). Census, Identity Formation, and the Struggle
for Political Power, in D. Kertzer and D. Arel, eds., Census and Identity: The Politics of
Race, Ethnicity and Language in National Censuses. Cambridge: Cambridge University
Press.
Keynes, John M. (1988 [1920]). The Economic Consequences of the Peace. New York: Pen-
guin.
Knaus, Gerald and Felix Martin (2003). Travails of the European Raj. Journal of Democ-
racy 14: 6074.
Lockwood, William (1975). European Moslems: Economy and Ethnicity in Western Bosnia.
New York: Academic Press.
Lovrenovi, Ivan (2001). Bosnia: A Cultural History. New York: New York University Press.
MacKenzie, Lewis (1993). Peacekeeper: The Road to Sarajevo. Toronto: Douglas & McIntyre.
Maglajli, Munib (ed.) (2000). Andri i Bonjaci. Tuzla: Preporod.
374 chapter fifteen
Mahmutehaji, Rusmir (2000). Bosnia the Good: Tolerance and Tradition. Budapest: Cen-
tral European University Press.
Maka, Emily G. (2005). Interpreting Multivalent Sites: New Meanings for Mostars Old
Bridge. Centropa 5: 6069.
Mann, Michael (2005). The Dark Side of Democracy: Explaining Ethnic Cleansing. Cam-
bridge: Cambridge University Press.
Nas, Peter (2005). Response to F. Moos, R. Fardon and H. Gusterson Anthropology Today
21(4): 1920.
Owen, David (1995). Balkan Odyssey. New York: Harcourt Brace.
Peabody, Norbert (2001). Cents, Sense, Census: Human Inventories in Late Precolonial
and Early Colonial India. Comparative Studies in Society & History 43: 819850.
Pupovac, Milorad (1999). uvari imena. Zagreb: Prosvjeta.
Rieff, David (1995). Slaughterhouse: Bosnia and the Failure of the West. New York: Simon
& Schuster.
Selimovi, Mea (1997). Death and the Dervish. Evanston: Northwestern University Press.
Sells, Louis (2002). Slobodan Miloevi and the Destruction of Yugoslavia. Durham, NC:
Duke University Press.
Sells, Michael (1996). The Bridge Betrayed: Religion and Genocide in Bosnia. Berkeley: Uni-
versity of California Press.
Seton-Watson, Hugh (1957). Nations and States: An Inquiry into the Origins of Nations and
Politics of Nationalism. Boulder, CO: Westview.
Sorabji, Cornelia (2006). Managing Memories in Post-War Sarajevo: Individuals, Bad
Memories, and New Wars. Journal of the Royal Anthropological Institute 12: 118.
Sudetic, Chuck (1998). Blood and Vengeance: One Familys Story of the War in Bosnia. New
York: Penguin.
Tabeau, Ewa and Jakub Bijak (2005). Casualties of the War in Bosnia-Herzegovina: A
Critique of Previous Estimates and the Latest Results. European Journal of Population,
forthcoming.
Todorova, Maria (1997). Imagining the Balkans. Oxford: Oxford University Press.
Weber, Max (1975a). Science as a Vocation. In H. Gerth and C. W. Mills, eds., From Max
Weber: Essays in Sociology. New York: Oxford University Press.
(1975b). Politics as a Vocation. In H. Gerth and C. W. Mills, eds., From Max Weber:
Essays in Sociology. New York: Oxford University Press.
Westendorp, Carlos (1998). Speech by the High Representative Carlos Westendorp at
the Sarajevo Return Conference, 03 February 1998. (Obtained from http://www.ohr
.int/speeches/s980203a.htm in 1998 but no longer available at that address; printout in
authors files.)
Wiebes, Cees (2003). Intelligence and the War in Bosnia 199295. Mnster: LIT Verlag/New
Brunswick: Transaction.
World Bank (2002). Bosnia and Herzegovina: Local Level Institutions and Social Capital
Study, vol. 1. World Bank: ECSSD.
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. Id 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 dont
378 chapter sixteen
have elections, just voting, or We dont 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 Jana, later Prime Minister of Slovenia from 20042008 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 198990,
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 Jana,
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,
1Dimitrij Rupel, Letter to the Editor, Foreign Affairs 77(#3): 159160 (1998).
from euphoria to eu-goslavia 379
and that the military could only be a defensive force. Well, according to
Slovenias 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 everybodys army has or has had
people in Iraq and/or Afghanistan.
Im 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 194549, Cyprus 196364 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, 199199.
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
2See http://www.slovenskavojska.si/en/international-cooperation/ (checked 6 March
2012).
380 chapter sixteen
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 Samardi) called
combative federalism, in which decisions were routinely held hostage by
each federal unit (Ramet 1984; Samardi 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 Yugoslavias unity was the single currency, the
from euphoria to eu-goslavia 381
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 Samardi 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.
382 chapter sixteen
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
Woodwards Balkan Tragedy (1995), but many of her sources come from
work done in the early 1980s by the Slovenian economist Joe Mencinger,
who shortly thereafter became Slovenias Economics Minister at the time
of independence, later Rektor of the University of Ljubljana. Mencinger
gave a number of interviews in 201112 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 dont 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 198990, when I was analyzing
the unworkability of the constitutional system of Yugoslavia; that it didnt
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
from euphoria to eu-goslavia 383
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.
Lets 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 Republics 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
384 chapter sixteen
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 Rusinows 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
from euphoria to eu-goslavia 385
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 didnt work because the Yugoslav
presidents in question included the likes of Slobodan Miloevi 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 20042009 Ferenc Gyurcsny, 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 201112 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
Ceauescu, 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
386 chapter sixteen
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
from euphoria to eu-goslavia 387
called ethnic cleansing were accomplished in the EU countries by 1945
46 (except for Cyprus 1974; Bulgarias 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, 19631983. Bloomington, IN,
Indiana University Press.
Rusinow, D. I. (1977). The Yugoslav experiment, 19481974. London, C. Hurst for the Royal
Institute of International Affairs.
Samardi, S. (1990). Jugosavija pred Iskuenjem Federalizma. Beograd, Struna Knjiga.
American Anthropological Association, 367
Amnesty International, 203, 239, 26465
and genocide denial, 248
Anderson, Benedict, 29091, 347, 363
Andri, Ivo, 71
Arendt, Hannah, 12021
Armenian genocide, 242, 248, 260
Badinter Committee, 300
Baki-Hayden, Milica, 18
Banac, Ivo, 7
Bene, Edvard, 113, 131
Bogosavljevi, Srdjan, 134
Borneman, John, 18586
Bosnia & Herzegovina
casualties 199295, 137, 14546, 15354,
25253
declaration of sovereignty, 55, 299,
32829
ethnic political history, 323
government, 3035, 32124
public opinion of state, 36466
vital interest, 311
Bosnian (bosanac) identity, 7879
Brezhnev doctrine, 28
Butmir proposals, 31920, 325, 32738
census
as categorizing device, 348
Bosnia & Herzegovina in 1991, 89, 105,
296
Croatia in 1991, 16
Slovenia in 1991, 89
etnik, 58, 1315, 34
citizenship, 100104
and ethnicity, 206
in Croatia, 1014
civil society, 26, 72, 143, 146
cluster bombs, 21618
collective guilt, 129, 133
concentration camps, 15457
constituent peoples, 332
constitutional nationalism, 12, 95, 122
constitutions & ethnic nation, 86, 95100
Council of Europe
and hate speech, 247
Croatian Democratic Union, 126
Das, Veena, 17981
Dayton constitution, 303, 30910, 31924,
32527
Del Ponte, Carla, 26768
democracy, 37987
India, 12526
demos & ethnos, 289, 302
Djilas, Milovan, 3435
Dodik, Milorad, 330
Douglas, Mary, 84
Drakovi, Vuk, 149, 22223
elections
Bosnia & Herzegovina in 1990, 5053,
337
Bosnia & Herzegovina in 1996, 306
Croatia in 1990, 36
Slovenia in 1990, 36
Yugoslavia in 1990, 95
ethnic cleansing, xiv, 59, 84, 175, 186, 300,
343
and self-determination, 122
definition, 11718
European Convention on Human Rights,
240
European Court of Human Rights, 250
European Union, ix
crisis, 377, 37987
recognition of Yugoslav republics, 123,
127
Evans-Pritchard, E.E., 344
Federalist Papers, 20, 313, 330
forced population movements
Germans, 11415, 12931, 315
Greeks & Turks, 315
India, 12426
Gams, Andrija, 29
Geertz, Clifford, 347, 350, 36870
Geneva Conventions, 221, 227
genocide
definition, 161, 254
rhetorics, 116, 138, 14852, 26264,
See also Holocaust
UN definition, 115, 129
Goli Otok, 28
INDEX
390 index
greater Croatia, 55, 66, 75
greater Serbia, 6, 55, 66, 75
Hammel, Eugene, 18
Havel, Vaclav, 114, 23536
Helsinki Watch, x, 203
Herceg-Bosna, 74
High Representative, 280, 305
Bonn Powers, 321
Hitler, Adolf, 210
Holbrooke, Richard, 154, 23132
Holocaust, 120
museum, 15860
rhetorics, 11617, 15458
Human Rights Watch, 21315, 23335, 283
Huntington, Samuel, 2022
imagined community, 90
Independent State of Croatia, 33, 3742,
92, 142, 209, 297
mass killings, 26263
intermarriage, 910, 9293, 195, 357
International Court of Justice
Bosnia & Herzegovina v. Serbia, 168,
25859
International Criminal Tribunal for the
Former Yugoslavia (ICTY), 156, 16067,
172, 177, 21537
and genocide in Srebrenica, 25457, 259
budget, 27880, 355
notion of justice, 267
prosecution, 251
public opinion of, 27174
international intervention
humanitarian justification, 21316
in Kosovo, 23334
international nature of Bosnian war,
22731
Izetbegovi, Alija, 20, 57, 71, 74, 118, 157
Jasenovac, 8, 3839, 43, 133, 150, 155
Jinnah, Mohammed Ali, 7677, 118
Kafka, Franz, 114
Kalaji, Drago, 74
Karadi, Radovan, 83, 118, 219
Kashmir, 339
Kingdom of Yugoslavia, 142
Kosovo, 3031, 339
Kouchner, Bernard, 21314
Krajina region, Croatia, 124
Krajinik, Momilo, 16466, 25758, 328
Krsti, Radislav, 25461
trial of, 16067
Kundera, Milan, 129
League of Communists of Yugoslavia,
2529
League of Nations
analysis of minority problem, 121
Ljiphart, Arend, 380
Longinovi, Tomislav, 18
MacKinnon, Catherine, 176
Marti, Milan, 21618
mass killings
Bosnia 1990s, 138
World War II Yugoslavia, xii, 13234,
138, 14445, 15253, See also
Independent State of Croatia
Mencinger, Joe, 38283
Mihailovi, Draa, 6
Miloevi, Slobodan, 12, 32, 40, 222
Mladi, Ratko, 219
Mostar, Herzegovina, 350
nation
narod, ix, 6, 90, 9599, 148, 290, 291, 380
sovereign, 292
nation-state, 12, 25, 90, 141
ethnic, 86, 2067, 2089, 345, 356
ideology, 29192
logics, 12122
NATO. See also international intervention
bombing of Serbia, 21920
civilian targets, 21722
NDH. See Independent State of Croatia
Nehru, Jawaharlal, 7677, 118
Nuremberg Tribunal, 26970
Opai, Dragan, 224
orientalism, xi, 5, 73, See also stereotypes
nesting orientalisms, 18
Ottoman empire, 73
Owen, Lord David, 6061
Paraga, Dobroslav, 204
partition
and Bosnia & Herzegovina, 50, 68, 106,
300
and India, 17, 69, 7677, 124
and liminality, 18788
Party of Democratic Action, 126
Peace Implementation Council (PIC),
3056
Petrovna, Dimitrina, 23637
rape
and mass violence, 17274
as genocide, 19093
as war crime, 17578, 19093
index 391
Bosnian war, 175, 18486
Liminality of state, 187, 19596
partition of India, 17879
symbolic violence, 184
Republika Srpska, 228
Republika Srpska Krajina, 216
Schabas, William, 25960
Schindler, Oskar, 113
self-determination, 22, 90, 9599, 104, 293
Selimovi, Mea, 338, 36061
Serbian Academy Memorandum, 1112, 147
Serbian Democratic Party, 126
eelj, Vojislav, 14, 15, 204
iber, Ivan, 11
Silajdi, Haris, 154
sovereignty
ethnically defined, 29596
Srebrenica, 169, 253
Starevi, Ante, 7
stereotypes
Bosnia, tradition of tolerance, 127, 347,
349, 35862
Europe, 4, 74, 360, 377
Islam, 7172
Muslims, 75
the Balkans, 4, 19
symbolic geography, xi, 5, 18, 79
Tadi, Duko
trial, 22327
Tambiah, Stanley, 72
Tihi, Sulejman, 352
Tito, Josip Broz, 28, 77, 142
Titos break with Stalin, 28
Todorova, Maria, 19, 73
Tokaa, Mirsad, 145, 253
treaty of Versailles, 121
Tudjman, Franjo, 12, 1415, 38, 72, 12021,
131, 14950, 2089
Ustaa, 58, 1315, 3444
Vance, Cyrus, 6061
Vance-Owen plan, 6267, 99
Versailles treaty, 277
Weber, Max, 139
West, Rebecca, 70
Wilson, Woodrow, 130
Yugoslav constitution of 1974, 30, 32, 90,
383
Yugoslav federal army, 3
Yugoslav idea, 14142
Yugoslav identity, 1011, 16, 9394
Yugoslav Partisan army, 34
Yugoslav self-management, 28, 98
Yugoslavia
population diversity, 91
arkov, Dubravka, 18586