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Memory of war crimes: Can victims speak?

Discussing the memory of war crimes in the former Yugoslavia, Obrad Savic, editor of the Belgrade Circle Journal, writes that Milosevic was guilty not only because he led a collective criminal enterprise, but also because he pretended "to enact national law in the name of ethnic justice, and even worse [...] demanded that ethnic justice nest in allegedly sovereign national law, which he then turned against international law [...] This criminal wanted to show that he was innocent by claiming that force is always-already essential to the very conception of justice as law."

"To the living we owe respect; but to the dead we owe nothing but the truth."
Voltaire, Lettres sur Oedipe

In what follows, I proceed from the basic belief that political evil should be addressed without denial, submissiveness, or silence. In the first section, "Can the victims speak?", I will articulate the position of victims, their undisputable right to dignity, truth, justice, and reparation. I will, thus, defend the survivors' right to work – without coercion and, often, blackmail – on their own past, their testimony, and memory, which are every so often latently exposed to the duress of ritualization, neutralization, and usurpation. In the next section, "Ethnic confiscation of memory", exemplified by the victims of genocide, I will analyze the mechanisms of national politics of memory and oblivion, and especially the ethnic appropriation of the memory, in what Holocaust scholars aptly call "administrative evil". I will take the opportunity to point to the return of sacralized memory, quasi-theological memory, which threatens to abolish a clear distinction between victim and martyr. In the next section, "Prosthetic memory of war crimes", I will consider the case of the secularized form of memory that has been exposed to growing media ritualization, banalization, and falsification. It is precisely this media processing of committed crimes that allowed for a deformed image of the past to become a decisive moment of a vulnerable, often illusive culture of collective (national, ethnic) memory.[1] In the final section, "International justice and memory of war crimes", I will confront a biased national, ethnic memory with a politico-legal organization of international memory of the victims of genocide. In other words, I will defend a thesis that proceedings of international criminal trials, as "moments of truth", can offer an inter-subjective memory of the events they process and judge. The cumulative effect of such trials, from Nuremberg to the ICTY, is that "the process of how people are made to vanish has become a distinctive feature of postwar conceptions of what memory is."[2]

Can the victims speak?

"Human beings are human insofar as they bear witness to the inhuman."
Giorgio Agamben, Remnants of Auschwitz

Is it possible to advocate, within a discourse of memory, for an indisputable right of victims? Does not a call for vigilant memory presuppose a betrayal of victims and their tragic past? What should one do with nuanced, fragmentary memory, which neither accepts everything nor erases everything? What stand should one take towards the fact that an empty space between what the victims of genocide suffered and what they said organizes a contestable space of testimony? Perhaps ever since the tragic event in Srebrenica, I have been obsessively concerned with these moral, political and – if you will – philosophical questions.

In order to confront a criminal past in a responsible and committed manner, it is necessary first of all to know how to reaffirm what comes before us. It is necessary to do everything to appropriate a terrible past even though we know that it remains fundamentally non-appropriable, whether it is a question of philosophical memory or the precedence of a language, and culture, in general. It means not simply accepting the brutal heritage of war crimes, but relaunching it otherwise and keeping it alive. "It would be necessary therefore to begin from this formal and apparent contradiction between the passivity of reception and the decision to say 'yes', then to select, to filter, to interpret, and therefore to transform; not to leave intact or unharmed, not to leave safe the very thing one claims to respect before all else. And after all, not to leave it safe; to save it, perhaps, yet again, for a time, but without the illusion of a final salvation".[3]

What in my opinion shapes the main obstacle to an unconditional rethinking of a criminal past is the fact that collective memory of victims of genocide in the end boils down to a heroization of the dead, to an improper "idealization of death", as Theodor Adorno put it. Furthermore, our moral debt to the victims, our memory of the victims often comes into play in order for us to "integrate" a war crime event into our collective memory, in order to undertake or to complete "mourning" it, to watch over it, or to cultivate its memory, instead to give a just thought to what happened there, which must remain without a name and without a concept, unique like other unique tragedies. What we can call just memory is a thought that attempts – beginning from there, from this singularity without a norm and without a concept – to approach something like new justice, a justice to be invented.

How to watch over victims that one can, however, neither watch over, nor assimilate, nor internalize, nor categorize? This is a paradox of fidelity to the other as a victim: to begin again to think, after Auschwitz and after Srebrenica, to begin to write otherwise rather than no longer to write, which would be absurd and would risk the worst betrayal. Affected by what happened there, we must testify what we can neither forget nor recall. But how can we testify in their name, in the name of victims? "The witness usually testifies in the name of justice and truth and as such his or her speech draws consistency and fullness. Yet here the value of testimony lies essentially in what it lacks [...] The 'true witnesses', the 'complete witnesses' are those who did not bear witness and could not bear witness. They are those who 'touched the bottom' [...] The survivors speak in their stead, by proxy, as pseudo-witnesses; they bear witness to a missing testimony [...] Whoever assumes the charge of bearing witness in their name knows that he or she must bear witness in the name of the impossibility of bearing witness."[4]

Despite all quandaries, the memory of victims of genocide may be justified if reduced entirely to a credible source: to the memory and testimony of surviving victims. By this I do not wish to claim that the memory of politically motivated crimes and of their victims may be reduced, leaving no remnants whatsoever, to an immediate testimony of those who survived. I strongly believe that the memory of mass crimes must be founded on a strict and reliable reconstruction of historical, social, political, material, technical, bureaucratic, and legal facts. However, the valid practice of the reconstruction of mass crimes could hardly be applied to a moral side of memory, let alone to the understanding of the structure of survivors' testimony of the past. This problem emerges unexpectedly, and I will try to articulate it through the accumulative effect of the Holocaust discourse,[5] or more precisely, on the basis of testimonies from Auschwitz, which most often impose themselves as an obligatory criterion for the confrontation with all mass crimes, including the massacre committed in Srebrenica. Simone Veil once asserted that the "Shoah was not supposed to leave a single witness, nor be a part of history"! Although we could agree with Nancy Adler's assessment that "these pages in history have been recorded, and told and retold by survivors and others",[6] I would be quick to add that we are still in great need of perpetual and unconditional commentary on survivors' testimony.

In the name of the 'moral grammar of the living' we are once again prompted to return to the serious and unexpected question of the enigmatic structure of testimony of death camp survivors. This dramatic return is indeed inevitable, although an authentic eyewitness testimony may at first seem to occupy a sacrosanct place within the discourse of memory, and more importantly, it may seem to play the central role in the memory of survivors. Before I venture into considering the question of internal, linguistic boundaries of survivors' testimonies, I would like to quote an illuminating passage by Gabriel Motzkin: "The disjunction between experience and how that experience is remembered by others cannot be overcome. Experience, on the one hand, and remembering the experiences of someone else, on the other, have quite different structures. My point is that moral categories are really applicable to memory and not to experience.[7] Although in principle I agree with Motzkin's remark, I would like to further it by claiming that what is an issue in victims' testimony is not, of course, the difficulty we face whenever we try to communicate our most intimate experiences to others. The discrepancy in question concerns the very structure of testimony.

Let us recall Giorgio Agamben's related argument: the perpetual commentary on the testimonies of victims represents the only reliable framework for moral understanding of what he calls "a profound enigma" of survivors' memory/testimony. According to Agamben's argumentation, at a certain point it became clear that testimony contained as its core an essential lacuna: in other words, the survivors bore witness to something it is impossible to bear witness to. "As a consequence, commenting on survivors' testimony necessarily meant interrogating this lacuna or, more precisely, attempting to listen to it. Listening to something absent [...] To listen to what is unsaid."[8] If the discourse of Auschwitz really triggered and enabled radical progress in the name of moral, in the name of new post-Auschwitz ethics, then Agamben's claim, his weighty request for a new, perpetual rethinking of survivors' testimony may be understood as the last, bounding step in the decisive constitution of what he called the "Ethics more Auschwitz demonstrata".

Agamben's seminal Remnants of Auschwitz: The Witness and the Archive is perhaps the most challenging text on the moral issue of the Nazi death camps. In this, probably the most recalcitrant text of the Western ethics of Auschwitz ("more than a secular refinement of the moral grammar of Judeo-Christianity")[9], the reader is faced with Agamben's philosophical vision of the unmasked "Gestalt of the Muselmann": "At times a medical figure or an ethical category, at times a political limit and an anthropological concept, the Muselmann is an indefinite being in whom not only humanity and non-humanity, but also vegetative existence and relation, physiology and ethics, medicine and politics, and life and death continuously pass through each other. This is why the Muselmann's 'Third Realm' is the perfect cipher of the camp, the non-place in which all disciplinary barriers are destroyed and all embankments flooded."[10] I will not go further into detail of the problematic, (non-)euphemistic use of the term "Muselmann": the German word for the Muslim commonly used, especially in Auschwitz.[11] However, it seems obvious that, on top of much less symbolic traces of European fear of the other, the Islamophobic European imagination was cynically and brutally exploited by the Auschwitz death camp jargon.[12] Furthermore, it may be said that the linguistic practice of Auschwitz was a demonic version of what Jean Luc Nancy described as "double alterity in internal division of Christian Europe". "The Jew, the Arab – have been constituted by and most important with and within Europe [...] What is Europe such that it has managed to distinguish itself from both Jew and Arab and to render its role in the distinction, the separation, and the enmity of Jew and Arab invisible – invisible, perhaps most of all to itself?"[13]

This brief excurse on the euphemism of the Muselmann (literally "the Muslim") is not motivated by my intention to reduce the Holocaust eyewitness' testimony to a so-called "linguistic event". Although I do not wish to inquire into the specific language of Nazis, I do agree with the suggestion that "the inquiry into language itself must take place prior to any historical work and as condition of this work: an inquiry into language must serve as a preamble to historical inquiry."[14] Without the reflection on "linguistic events" we will not be able to understand the decisive function of the camps in the system of Nazi biopolitics. "The concentration camps are not merely the place of death and extermination; they are also, and above all, the site of the production of the Muselmann, the final biopolitical substance to be isolated in the biological continuum. Beyond the Muselmann there lies only the gas chamber."[15] "In the Muselmann ('walking corpse'), biopower is sought to produce its final secret; a survival separated from every possibility of testimony, a kind of absolute political substance that, in its isolation, allows for the attribution of demographic, ethnic, national, and political identity".[16] Finally, as Agamben argued, "the expression 'fabrication of corpses' implies that it is no longer possible to truly speak of death, that what took place in the camps was not death, but rather something infinitely more appealing. In Auschwitz, people did not die; rather, corpses were produced. [...] And, according to a possible and widespread interpretation, precisely this degradation of death constitutes the specific offence of Auschwitz, the proper name of its horror." [17]

Allow me now to sum up Agamben's line of argument, which may help us understand the ambivalent structure of testimony. For Agamben, Auschwitz stands accused on two apparently contradictory grounds: on the one hand, of having realized the unconditional triumph of death against life; and on the other, of having degraded and debased death. It is as if there were in Auschwitz something like a Gorgon's head, which one cannot – and does not want to – see at any cost. Among these categories (that are both extreme and absolutely familiar: life and death, dignity and indignity), the true cipher of Auschwitz – the Muselmann, is the "core of the camp", he whom "no one wants to see". "He is truly the larva that our memory cannot succeed in burning, the unforgettable with whom we must reckon".[18]

The paradox here is that if the only one bearing witness to the human is the one whose humanity has been wholly destroyed, then the identity between human and inhuman is never perfect, which in turn implies that it is not truly possible to destroy the human, that something always remains. The witness is this remnant. Thus, testimony refutes and denies this isolation of survival from life and from the future. "Precisely insofar as it inheres in language as such, precisely insofar as it bears witness to the taking place of potentiality of speaking through an impotentiality alone, its authority depends not on a factual truth, a conformity between something said and a fact, or between memory and what happened but rather on the immemorial relation between the unsayable and the sayable, between the outside and the inside of language. The authority of the witness consists in his capacity to speak in the name of an incapacity to speak – that is, in his or her being a subject, a subject of testimony. Testimony thus guarantees not the factual truth of the statement, but rather its fragile unarchivability, its exteriority with respect to the archive – that is, the necessity by which, as the existence of language, it escapes both memory and forgetting."[19] To what does such fragile language bear witness? To something – a fact or an event, a memory or a hope, a delight or an agony – that could be reflected in any future discourse on testimony of war crimes.

Many philosophers have suggested that Auschwitz is the terrible name, the most terrible name, more terrible than any other: "Auschwitz is a terrible name because it cannot be sublime enough. Its memory is one without any idea. This makes it all the more compelling: its obligation is beyond the idea of morality and its obligation. This may be what thought can no longer think. How could we think otherwise? 'Auschwitz' is incommensurable: not only because nothing similar can be thought or imagined, but above all, because something unlike anything else compels us to think and act in such a way that nothing similar ever happens."[20] If the name of Auschwitz and Srebrenica marks the limit of knowledge (because the name reproduces the violence it produces when naming; because a name always wants to be the only one to name what it names, that is its narcissism, the narcissism of naming), if it forbids rethinking itself, than we must accept Derrida's warning: he warns us against the discourse of memory which takes Auschwitz as a model: to take discourses which refer to Auschwitz as a model "is in danger of reconstituting a sort of centrality, a 'we' which is certainly not that of speculative dialectics but which related to the unanimous privilege which we occidental Europeans accord to Auschwitz. [...] names which have names and names which have no name."[21]

Adorno tried to resolve this paradox of naming a "place" of collective death, this confrontation of thought and death, in the following way: "Materialism is philosophy that would bring death into consciousness without reducing or sublimating it."[22] But how is it possible to "bring death into consciousness" without sublimating it, without idealizing it, without imagining it? Is it really possible? The "consciousness" of which Adorno speaks cannot function on the basis of subjective self-representation, of the experience and certitude of the subject, but perhaps on the basis of the vigilant memory of a thought which would think against thought, against the thought as the thought of identity, against Auschwitz as a pure, unique identity. No poem after Auschwitz has a meaning: after Auschwitz there can be no more promises, or names. As Adorno said, "Auschwitz confirmed the philosopheme of pure identity as death".

But despite everything, we must think of Auschwitz, self-reflect on thinking about Auschwitz, only if this thinking becomes thinking against itself, against identity, the identity of Auschwitz. The word we could use to name this paradox of thinking belongs to Hölderlin's lexicon: andenken (any act of memory). This word indicates that we approach some events, terrible events (Auschwitz and Srebrenica), which do not let themselves be approached, which demonstrate a certain resistance to thought, to reflection, to memorization. "Andenken tries to approach everything that resists it, or, more precisely – it tries to let itself be approached by the other who is to come so that it can keep him by forgetting him and make sure that he will return."[23] In fact, andenken is promising memory, the gift of language, the sign that we can remember something, something which will return and belong to the future. But if we come too close to the name of Auschwitz and Srebrenica, we could be in danger of being paralyzed, paralyzed by the memory of these names. Therefore, we have a duty and the right to mourn, always mourn, what is named, because there can be no testimony without proper names. In this sense, the testimony of victims is already a sign of hope, memory of the melancholy hope for the other in his absented otherness. The name as a promise forces us to promise to remember it, to keep it in our memory. But, what does the victim's name promise? As a radical prototype of memory in language, it promises the extraordinary experience of language, an experience of language as (im)possible gift.

With this introductory consideration of a paradoxical structure of memory, I certainly do not wish to encourage those who would like to see the memory of Auschwitz and Srebrenica forever suppressed and denied. On the contrary, the call for rethinking of internal boundaries of testimony about victims, especially the survivors' testimonies – which must be bound to the reconstruction of external threats that undermine the collective memory of mass crime victims – is addressed in the name of moral, political, philosophical cultivation of memory, or, as I said at the beginning – in the name of a new, just memory, or a memory justice yet to be invented.

Unlike the question of paradoxical structure of memory and the linguistic boundaries of memory, which remains forever open, the confrontation with external threats to the memory of mass crimes and genocide ought to be decisive and unrelenting. First and foremost, the memory of the victims should be defended from constant tensions between denial and recognition of criminal acts, from the competition for incommensurable memories, a competition traditionally waged between "perpetrator memory" and the "memory of victims". It may be argued that it is precisely this war, the war for recognition and denial of victims, the war for remembrance and forgetting of the nightmare past that makes the foundation of old and the formation of new forms of collective, national, and ethnic identities. Most authors of the "memory study" would agree with Stathis Gourgouris that "The tradition of all the generations of the dead weigh like a nightmare on the mind of the living. Tradition is a nightmare because it means giving one's self fully to the dirty tricks of (national) memory. The dead come to life to reclaim the space of the living; the words of the living are lost amidst the miraculous performance of resurrection. What keeps one from making history as one pleases are those phantasms "encountered and inherited from the past", the ghostly memory that compels one to speak it as history, one's own history. National history is a genre epitomizing this compulsion to write the ghostly past into the present tense of nationhood (where it then fashions itself as always already present), a genre driven by the compulsion toward (collective) confession."[24]

I believe that the problem of enemies of the memory of victims of genocide may be resolved by a distinction, introduced on principle grounds, between politico-legal organization of international memory of perpetrators and quasi-theological construction of national, ethnic memory of the victims. Indeed, I am not quite certain to what extent the invocation of changes that occurred in historical formations of collective memory (from quasi-religious construction of national, ethnic memory of the victims – a construction which still haunts us – to politico-legal organization of international memory of crimes – which we have not fully mastered yet) will contribute to a deeper understanding of the culture of memory and oblivion.

Secondly, I see a more serious obstacle here: the attempt to rescue and guard the dignity of victims from so-called "friends of the victims", those who in the name of remembrance of past sufferings have usurped the right to speak on behalf and instead of the (im)possible speech of the victims. Elie Wiesel, one of the greatest authorities on Holocaust, openly pointed to this undisputable fact: "Those who have not lived through the experience will newer know; those who have will never tell; not really, not completely. [...] The past belongs to the dead [...]"[25] Allow me to remind you of Shoshana Felman and Dori Laub's articulation of the paradoxal concept of the Shoah as an "event without witnesses": "It is not possible to tell the truth, to testify, from the outside. Neither is it possible, as we have seen, to testify from the inside. I would suggest that the impossible position and testimonial effort of the film as a whole is to be, precisely, neither simply inside nor simply outside, but paradoxically, both inside and outside: to create connection that did not exist during the war and does not exist today between the inside and outside – to set them both in motion and in dialogue with one another."[26] Surely, "coming to terms with an unjust past" is not celebration of great achievements but rather the reverse. In fact, one of the greatest difficulties in coming to terms with past injustice is the nightmare of the criminal reality we are trying to understand and explain by one exclusive discourse, for example, in language of victims! Jean-Francois Lyotard's observation ("It is in the nature of a wrong not to be established by consensuses"), seems highly relevant: "The plaintiff's conclusion [...] should have been that since the only witness are the victims, and since there are no victims but dead ones, no place can be identified as a gas chamber. He should not have said that there are none, but rather that his opponent cannot prove that there are any, and that should have been sufficient to confound the tribunal. It is up to the opponent (the victims) to adduce the proof of the wrong done to him or her! [...] It is in the nature of a victim not to be able to prove that one has been done a wrong. [...] In general, the plaintiff becomes a victim when no presentation is possible of the wrong he or she says he or she suffered. Reciprocally, the 'perfect crime' does not consist in killing the victim or the witnesses [...] but rather in obtaining the silence of the witness, the deafness of the judges, and the inconsistence (insanity) of the testimony. You neutralize the addressor, the addressee, and the sense of the testimony; then everything is as if there was no referent (no damages)."[27]

The dignity of survivors ought to be protected not only from the enemies of victims but also from the "friends of the victims", those banal moralists who, because of their (self-)imposed sense of guilt or responsibility have appropriated the already fragile survivors' testimony: "I must repeat – we, the survivors, are not the true witnesses. [...] We, the survivors, are not only an exiguous but also an anomalous minority: we are those who by their prevarications or abilities or good luck did not touch bottom. Those who did it, those who saw the Gorgon, have not returned to tell about it or have returned mute, but they are the Muslims, the submerged, the complete witnesses, the ones whose disposition would have a general significance. They are the rule, we are the exception. [...] But this was a discourse 'on behalf of third parties', the story of things seen at close hand, not experienced personally. Weeks and months before being snuffed out, they had already lost the ability to observe, to remember, to compare, and to express themselves. We speak in their stead, by proxy".[28]

I do not quote this famous excerpt from Levi's dramatic, honest, and irresistible testimony in order to imply a latently usurping practice of testimony and memory of the victims of Auschwitz. Against the background of those "instant witnesses", who are quick to offer an explanation for everything (the most radical opposition of which would be those who refuse to understand anything by offering cheap mystifications), I suggest that, in the name of dignity of the victims, we listen and acknowledge what they could not or did not want to tell. Thus, unlike the official, institutionalized testimony, which calls on justice and truth, we could take the risk of promoting precisely the survivors' testimony, a testimony founded on the lack, on that which passed over in silence, which remained unsaid, on that which is always already elusive and missing.

Let us again return to the these most terrible words of Primo Levi ("I must repeat – we, the survivors, are not the true witnesses [...] We speak in their stead, by proxy"), the most terrible words created an almost tropic fascination with the Muselmann as a exemplary instance of the (im)possibility of true testimony. "Witnessing here is beyond judgment because the situation was one in which victim and executioner are equally ignoble; the lesson of the camps is a brotherhood in abjection – a frightening phrase. Agamben is right in suggesting that we should not confuse the ethical with the legal, and that the great temptation of modern moral theory has been to conflate the two, reducing the ethical to the legal in order that we can make judgments; but judgments in a legal setting, need not be either true or just. [...] Levy, Agamben contends, discovered at Auschwitz an area that is independent of every establishment of responsibility, not because it is an area of impunity, but, on the contrary, because it is a responsibility that is infinitely greater than any we could ever assume".[29] It means that ethics of (im)possibility of real witnesses – if it is come to be, must distinguish itself from the moralizing of morality, from the naïve sentimentality, the incessant desire to stand in the space of autonomous moral truth and render judgment. What Agamben really wants to say is that ethics is possible only if we can recognize this waste or garbage of the human because it is in each of us! If even moral dignity (the normative model of how we ought to comport ourselves) and self-respect lose their grip in camp, then ethical and legal recognition cannot be bound to them. Simply speaking, the victims disserve more than pure moralizing and sentimentality.

I believe that Agamben's fundamental intention is to neutralize the falsification of the post-traumatic narrative of witnesses (Auschwitz as genre). Only the bodies of the victims, bodies without dignity and language – de-subjectification is consubstantial with the loss of language – can express pure desire to bear witness on inhuman in human. Even if we cannot accept Agamben's philosophical reflection on the "pornography of horror", the pornography of Nazi death camps as a fundamental paradigm of "biopolitical power", we have to admit that the Muselmänner, like corpses, are a document of total destruction, barbarity as the end of humanity.

Despite the inherent impossibility of real testimony, true witnessing, appropriate symbolization of the traumatic experience (dead cannot testify), we have a duty to create a new ethics, more than ethics, referring to the barbarian legacy of Auschwitz. We must try to never stop saying it ("Something is established as a fact only once it is said", Jacques Lacan), to testify, to keep on bearing witnesses, even in the situation "when there is and can be no witness" to confess and to testify. But what does it mean for survivors? The witness as a speaking being needs an Other, even if they are afraid to injure language, to inflicting the wrong language, the language of barbarity, and sometimes, language as barbarity. In order to protect language, to save Platonic love toward "authentic language", they can refuse to talk: "The silence of a wrong inexpressible in the accepted idioms signals not only the failure of the witness to find the 'right' word, but also the deficiency of language which, by failing to provide the appropriate idiom, appears not-all, to be lacking".[30] I believe that Lyotard's comment that "To be able not to speak is not the same as not to be able to speak. The latter is a deprivation, the former a negation", prompted us to understand a potential part of eloquent silence. Far from being unequivocal, eloquent silence could be accepted as an address destined to the Other in his otherness, as a demand, appeal for a response, and calls for an unconditional interpretation. This means that it can be argued, against the aesthetic guardians' of silence, that representation of silence – the moment in which the unrepresentable would come to show itself – can and must be separable from the silence of representation.

International justice and memory of war crimes

"No state owns the suffering it produces or hosts."
François Mitterand

Before I venture into analyzing the significance of international law (its institutions, discourses, and practices) for the constitution of memory of war crimes, I would like to reiterate and emphasize the fact that the analytics of transitional justice does not recognize a relevant legal space for the question of victims: "Yet in modern legal systems, punishment is not justified by the needs of the victims. Reparation for victims of wrongdoing is uncoupled from punishment of the wrongdoer".[31] As Hannah Arendt once noted, the subject of the Jerusalem trial was Eichmann's wrongdoings, not the question of millions of innocent victims. Against the background of a traumatic past, soaked in "elements of past sufferings", the question of principal relationship towards victims, and indeed towards perpetrators, should be posed in the most radical, indeed the most dramatic form. Over ten years since the mass crime at Srebrenica, it is our duty to demand that the condemnation of war crimes, as well as the compensation for victims – however insufficient – be ample and thorough. But in doing so, we must remain cautious towards the practice of national courts for war crimes committed on the territory of the former Yugoslavia. Their (possibly biased) administering of persons indicted for war crimes may be in danger of concealing the truth about ethnic cleansing and the tragic past filled with injustices and guilt. This implies that the fate of key transitional justice agents – perpetrators and victims – must not be surrendered solely to the influence of national institutions, or to the unpredictable logic of their legislative bodies, courts, and administrative procedures. By now it has become clear that "national interests" have the power to distort and limit the scope of legal overcoming of the criminal past.

To be sure, a desire for retributive or impartial justice, for settling a debt towards victims, should not be seen as the only motive to move the agents of transitional justice. The majority of states and nations are simply not ready to honestly and responsibly deal with reconstructive justice, to learn from their own mistakes, from their own experience of crime, suffering, and injustice. Despite numerous obstructions that impede the process of transitional justice, legal overcoming of illegal and inhuman acts must not unfold in an unjust manner, such as the use of legal tricks and frame-ups in order to cover up for a retroactive character of criminal legislature. Although political settling of accounts may unfold in a context of regular judicial practice, there is general consensus concerning the fact that legal achievement of justice remains one of the most reliable mechanisms of institutional overcoming of the past and of instituting the future defined by rule of law.

Although the results of transitional justice in the last few decades have contributed to the spreading of awareness about politically motivated crimes, reliable, preventive mechanisms capable of protecting us from a possible influence of the past authoritarian regime in the future have yet to be discovered. Systemic deficit of a normative conception of justness suggests the limitations of transitional justice, which futilely attempts to settle the legally unsettleable (and "unsettling") accounts with the horrifying past. The lack of ethically normative consensus, on the basis of which a unique legal-political intervention may be performed in order to protect those who are suffering, represents the foundational problem of transitional justice. Injustice against the victims cannot be compensated only for the sufferings imposed on them in the past, but also for their having been prevented from living with dignity in the future.

Since the Nuremberg trials, it has been possible to trace the genesis and history of politico-legal organization of international memory of victims and perpetrators of war crimes. As I mentioned, the cumulative effects of international dealing with war crimes, from Nuremberg to the ICTY, are inscribed in the positive effects of legal overcoming of the past. They represent the most important moments in the history of transitional justice. As Ruti Teitel aptly suggests, "half a century after the events, the leading monument to the Nazis' World War II defeat remains the Nuremberg trials". Or in Kirchheimer's words, the Nuremberg trial enabled "the construction of a permanent, unmistakable wall between the new beginnings and the old tyranny".[32] However, despite the impressive results of international war crimes trials, the question of the conception of justice in the period of political transition has not yet been fully addressed. Generally, debates about transitional justice are framed by the normative proposition that various legal responses should be evaluated on the basis of their prospects for democracy. This means that the political question of democratic stabilization and consolidation of post-authoritarian systems ought not to be separated from a demand for the rule of law. In the prevailing transitional justice debates, the punishment of ancien régime representatives is persistently advocated as necessary in the transition to democracy. The purpose of this essay would not require my dwelling on the issue of the role of law in transition; for example, it would not require my answering the question whether the response to past tyranny and mass crime lies in the domain of the law (legal discontinuity with the past), or in the domain of politics. However, it is necessary that I draw your attention to the specific problem of the role of international criminal justice in political transition: how do new democracies respond to legacies of injustice?

The best way to understand the legacy of Nuremberg, its significance as precedent, is to say that this jurisdiction was not national but international. In other words, Nuremberg trials created the transnational normative message.[33] The binding value of the international legal action in Nuremberg, and later in the ICTY, is frequently deemed superior to efforts undertaken on a national state-by-state basis. Differences in domestic law mean certain crimes will be punishable in some countries and not in others. Furthermore, mass atrocities, ethnic cleansing and genocide, do not easily fit in national law, because such crimes are codified in different ways than are offences under national law. Certain crimes, such as torture, are often not recognized in national law. Even "crimes against humanity", atrocities committed against civilians, were prosecuted at Nuremberg only if related to the war. In general, The Nuremberg Principles and processing comprise and constitute a pivotal turning point in the conceptualization of responsibility for state crime. At the same time, for the first time in history, the Nuremberg Tribunal clearly established that responsibility for atrocities under international law could be attributed to individuals: "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. [...] While, traditionally, heads of state enjoyed sovereign immunity under the Nuremberg Principles, public officials could no longer avail themselves of a 'head of state' defence based on their official position but, instead, could be held criminally responsible."[34] From Nuremberg to the ICTY, international humanitarian law offers a normative framework for professional thinking about war crimes and successor justice.

But, while the principles generated at Nuremberg radically expanded the potential individual criminal liability, they do not offer a basis for deciding who, among all of those potentially liable to bring to trial and justice. Transitional criminal justice is still faced with dilemma of irreducibility of individual responsibility to state responsibility and vice versa. For example, how should criminal accountability be ascribed between those who gave orders to persecute and those who followed? What are the moral consequences of the international legal strategy which can be summarized in the following formula: state crimes but individual justice? Of course, we can accept the assertion that despite the limited international criminal justice, despite the absence of full or lasting punishment, the transitional criminal sanction appears to constitute a symbol of the rule of law. However, from the standpoint of victim, transitional criminal justice is simply a "ritual of liberalizing states", but not appropriate justice for victims.

Does this mean that transitional justice can shape the memory of victims who unwillingly agreed to renounce the request for the punishment to be proportional to the crime, and for all perpetrators to be punished? In other words, we must face the internal limitations of corrective capacity of transitional criminal justice. I would even go as far as to bring up the arguments in line with the claim that legal overcoming of the past produces a paradoxical effect of the suspension of political and moral overcoming of a criminal past. I will articulate the claims about limitations of legally overcoming the past within a moral and political and not legal discourse. Namely, international legal instances (war crimes trials in Nuremberg, Tokyo, and The Hague) have produced unintentional effects of juristic neutralization of political and moral (ir)responsibility.[35] In having only some criminals punished, it will be difficult to level and to re-establish the political balance among nations and moral balance among peoples. In a courtroom and within legal discourse, only individual rights, but not the collective ones, may be advocated for and defended. Public reflection on German guilt for the Holocaust or Serbian guilt for ethnic cleansing and genocide may not solely be overcome by the mere absolving of court practice. Overall overcoming of a criminal past must not be unconditionally surrendered to legal discourse and its courts, even if it acts under the auspices of the international community. Perhaps it wouldn't even be fair to impose on legal discourse a historical, political and moral burden which legal institutions have not been able to cope with. Thus, the establishment of truth about the authoritarian past does exhaust itself in the establishment of the truth disclosed in court proceedings.

The second paradox of legal settling of accounts with a criminal past relates to the figure of separation, a failed attempt to distinguish the legal concept of truth from historical concept of justice. The mechanisms of distinguishing particular "cases" from the pool unfold in accordance with a conventional line of argument which, in its brief version, says: court discourse, its institutions and practices, refrain from entering the question of collective and political responsibility for crimes against humanity. To state it more bluntly: the juristic overcoming of a traumatic past remains deficient even when the legal warrant of justice has been done. The proportion of historical catastrophe and the magnitude of crimes committed in the name of German, or Serbian, people implies that Eichmann's trial in Jerusalem and Milosevic's trial at the ICTY represent a public stage of juristic neutralization of state-sponsored (nationalized) criminal enterprise. Simply put, the subject of these trials is Eichmann's and Milosevic's individual guilt, and not the suffering of victims. I am afraid that those advocating for a reduced (that is to say legal) overcoming of the past are not ready to face the fact that the legal conception of justice latently threatens to damage the universal sense of justness which belongs to all victims.

In other words, a juristic concept of justice implies a deficiency in overcoming the political and moral abyss gaping between individual guilt, institutional command responsibility and collective, political (ir)responsibility. It is naive to believe that total injustice against victims (civilians) may be levelled solely and with no remnants whatsoever within legal framework. Normative concept of historical justness should not be reduced to the legalistic framework of justice, even when legal-positivist procedures count on maximum fairness. Is it possible at all to adequately reconstruct the criminal politics aimed at eliminating whole ethnic groups through particular verdicts? It is obvious that effects of unpunished political evil leave behind ravaged social, political and moral consequences which impede the successor regime's ability to create a non-criminal state and an anti-criminal populace. The verdicts pronounced in court do not render the full truth of a criminal past that needs to be faced.

Allow me now, in solidarity with victims, to develop an argument which anticipates moral satisfaction from a legal verdict. The thesis on moral duty to punish, but also on the appropriateness of punishment proportional to a particular criminal act, will be articulated here through a case registered in the ICTY's documents as IT-02-54. Briefly: Milosevic's guilt exceeded the judicial concept of justice. A sentence passed by the ICTY, including capital punishment, which has been excluded from European legal space, could not be proportional to crimes committed by Slobodan Milosevic. In other words, his responsibility for the widespread existence of suffering and vast scope of crimes could not have been levelled in the courtroom. I hope this claim sounds crystal clear, although it hasn't been uttered by a legal expert or in a juristic jargon. One would be able to defend this claim even if the ICTY were to establish the highest form of legal concept of justice – that is, even if the defendant in the IT-02-54 case was to be sentenced to maximum punishment: life imprisonment.

In Milosevic's case, he was involved in some of the crimes committed in Kosovo, Croatia, and Bosnia and Herzegovina, that is, he was the main link in the chain of perpetrators, commanders, and masterminds of criminal acts. His "charade-like defence" on all counts of the indictment boiled down to nothing but the open theatre of infantile shame. Caught in a web of merciless and irrefutable charges and evidence, Milosevic could not defend rationally and factually. A classic argumentation about moral obligation and duty to punish did not suit him. The international community had to defend itself from criminals, even when crimes were committed in the name of so-called national interest. "Although a society may never decriminalize itself in its entirety, it must maximize its control of crime. Legal punishment is a means for achieving that goal."[36] In this sense, every procedural invocation of an argument in which the admission of guilt by an indicted is a pre-condition for the legitimacy of punishment seems unconvincing. As if the purpose of the punishment is for the criminal to repent, to possibly renew his or her moral integrity, allegedly temporarily disturbed by his or her criminal act! Not only does the international criminal court have an obligation to punish a perpetrator, but the punishment must be seen as the right of the accused. In the moral sense, a just punishment is a verified punishment pronounced in and by the court, and enforced for the benefit of all, in the name of a "common good". This punishment ought to be proportionate to the nature of misdeeds: the perpetrator should share the fate of his or her victims. A committed criminal act is the only source of the right and the duty of a criminal court: it is also a measure of the legitimacy of a punishment, because punishment, in an ideal sense, must be proportionate to a criminal act.

Did Milosevic have the right to hope to benefit from a demand for equality between the punishment and the criminal act? May a perpetrator of mass criminal acts expect to profit from the fact that there is no punishment absolutely proportional to the crime he committed? Since capital punishment has been banished from the law (the unacceptable principle: "If I have killed, I don't have the right to life."), Milosevic would have profited from the absurd fact that "laws as laws are not just" (his right to life was not taken away from him whatever his crime), that we obey laws not because they are just but because they are laws, because they bear the authority of (international) law. In other words, the defendant may uselessly hope to evade justice because the law feeds on continuous demarcation of law from justice. "Justice of the law, justice as the law is not justice. Laws are not just as laws. We don't obey them because they are just, but because they have authority, 'a mystical foundation' of authority of the law."[37]

Despite an intrinsic split between the law and justice, Milosevic was unable to escape an unrelenting verdict coming from the only authorized force lingering at the heart of international law. His charlatan-like self-defence showed the lack of elementary legal culture: he demanded exclusive right to justice precisely against the background of injustice he had done to others. Milosevic did not learn the lesson that international law is authorized common will, which relentlessly undermines the self-will of an individual. In its essence, European law strives to condemn individual violence to the extent to which this violence poses a threat not to this or that law, but to international legal order itself. Serbian people's remarkable fascination with the figure of a great national criminal may be explained in this way. Milosevic was not just a major criminal who committed horrifying crimes for which a part of Serbian citizens feels secret or overt admiration. Milosevic was also a madman who dared to stand up to the ICTY, someone who, undermining international law, alleged he was stripping naked the very violence of the world legal order.

An impossible strategy of Milosevic's defence was the ethnic absolving of the criminal past. Serbia holds legitimate state authority (sovereignty) over the territory of the former Yugoslavia, especially where ethnic Serbs live, to radically violate and question the international legal order. However insignificant, this parochial criminal made the world community pretty upset when he tried to usurp the right to "foundational violence", when he used force to turn the legal relations to Serbia's benefit. International intervention occurred precisely when Serbian side dared to demand an unconditional right to law, even at the cost of hurting the international sense of justness. International community did not react in good time to the war and ethnic cleansing which Milosevic's Serbia imposed on the rest of ex-Yugoslavia: "humanitarian intervention" came belatedly, and it came too late, precisely at the moment when the war, as original, archetypal violence in the former Yugoslavia, was transfigured into foundational legal violence, violence of the right over law, ethnic right over international law. In other words, Milosevic's regime was punished because it illegally usurped the right to legal violence (systematically violating "humanitarian law"), which originally belongs to and is essentially part of international law.

In the case of IT-02-54 case, the point is not only that the accused was the leader of a "collective criminal enterprise", the main link in the chain of perpetrators, commanders and masterminds of criminal acts. The point is that he is guilty of having showed overt pretence to enact national law in the name of ethnic justice, and even worse – of having demanded of ethnic justice to nest into allegedly sovereign national law, which he then turned against international law. Milosevic's arrogant spite aimed against the ICTY was not only to reveal the allegedly legal violence of the international criminal court. This criminal wanted to show that he was innocent by claiming that force is always already essential to the very conception of justice as law.

However, unless justice is only a legal or political notion, if it is open for a new moral transformation, the accused in the IT-02-54 case could (not) eventually be "punished in harshly and unusually".[38] "Lets look at someone who committed a series of horrifying crimes – say Himmler or Eichmann. It seems to me that a harsh but just judge [...] could address the accused with these words: I could say that you were not responsible for your deeds; I could say that they have been caused by fatal genetic error, or catastrophic upbringing, or social climate in which you lived. I could decide to refrain altogether from punishing you, and instead to change the structure of your personality, to 'cure' you. But if I am to treat you as a human agent fully responsible for horrifying and unpardonable atrocities you have committed, then there can be only one appropriate punishment – death penalty."[39] I don't want to sound like a rigid advocate of retributive justice: I simply intend to say that a "harsh and an unusual punishment" – the death penalty – participated in the construction of the universal ideas of justice. "Of course, the other position can be, and must be, imposed by the discourse of transitional justice: what essentially matters in creating the rule of law is legal culture, but not abstract or universal ideas of justice! In any case, international justice must not only be done, but also be made to look useful and appealing. Future politicians would then decide to choose 'justice as policy'"[40] or, what is much more relevant for the victims, truth as justice.

This article is a revised version of that presented at the international conference "Echoes of genocide: Bosnia 1995-2005", organized by the Institute for Genocide Studies, University of Amsterdam, Amsterdam, 25 September 2005. I would especially like to thank Vesna Bogojevic, Sanja Pesek, and Dusan Dordevic Mileusnic for their useful comments.


  • [1] "Hence the difficulty of extracting our past from the present: it is not only that present factors influence our memories of the past – some would say by distorting them – but also that the past factors make impact on our re-living of the present, or distort it even." Pol Konerton, Kako drustva pamte, Samizdat B92, Beograd, 2002, 10.
  • [2] Mark Osiel. Mass Atrocity, Collective Memory and the Law, Transaction Publishers, New Brunswick and London, 2000, 2.
  • [3] Jacques Derrida and Elisabeth Roudinesco, For What Tomorrow... A Dialogue, Stanford University Press, Stanford, California, 2004, 4.
  • [4] Giorgio Agamben, Remnants of Auschwitz: The Witness and the Archive, Zone Books, New York, 2002, 34.
  • [5] Despite unsatisfactory connotation, the word "Holocaust" has entered into mass, popular usage, and so it and the word "Shoah" will be used here to mean one and the same thing. "The word 'Holocaust' primarily means 'something wholly burnt up'. The word Shoah is now used by most scholars and writers because this simply refers to the devastation and catastrophe that happened without any religious connotation. Most Yiddish speakers refer to the Nazi period as a Churban, a rabbinic term describing the destruction of the first and second temples." See: Richard Harris, After the Evil: Christianity and Judaism in the Shadow of the Holocaust, Oxford University Press, Oxford, 2003, 8. See also: Franklin Littell, Inventing the Holocaust: A Christian's Retrospect, Jerusalem, 1993.
  • [6] Nanci Adler (ed.), Genocide and Accountability, Amsterdam University Press and Center for Holocaust and Genocide Studies, Amsterdam, 2004, 7.
  • [7] Gabriel Motzkin, "The Memory of Crime and the Formation of Identity", in: Helmut Dubiel and Gabriel Motzkin (eds.), The Lesser Evil: Moral Approaches to Genocide Practices, Routledge, London, and New York, 2004, 210.
  • [8] Agamben, op. cit., 15.
  • [9] S. Parvez Manzoor, "Turning Jews into Muslims: The Untold Saga of the Muselmänner", in Islam21, London, No 28, April 2001, 8-12.
  • [10] Agamben, op. cit., 48.
  • [11] The authoritative Encyclopedia Judaica has this explanation under the entry Muselmann: "Used mainly at Auschwitz, the term appears to derive from the typical attitude of certain deportees, that is, staying crouched on the ground, legs bent in the Oriental fashion, faces rigid as masks." Another observer associates "the typical movements of the Muselmänner, the swaying motions of the upper part of the body, with Islamic rituals". (Sofsky Wolfgang, The Order of Terror: The Concentration Camp, Princeton University Press, 1997, 329, n.5.). Even more revealing are the synonyms which are, as if often the case with jargon, brutally forthright and non-euphemistic. "The expression (Muselmänner) was in common use, especially in Auschwitz, from where it spread to other camps as well. [...] In Majdanek, the word was unknown. The living dead there were termed 'donkeys', in Dachau they were 'cretins', in Stutthof 'cripples', in Mauthausen 'swimmers', in Neuengamme 'camels', in Buchenwald 'tired sheiks', and in the women's camp known as Ravensbrück, Muselweiber (female Muslims) or 'trinkets'. Still, according to the accepted convention of the camp, only 'those men who had long since lost any real will to survive [...] were called 'Moslems' – men of unconditional fatalism." (Kogon Eugen, The Theory and Practice of Hell: The German Concentration Camps and the Systems Behind Them, Octagon Books, New York, 1979, 284). In any case, for Agamben, "It is certain that, with a kind of ferocious irony, the Jews knew that they would not die at Auschwitz as Jews. For others, there's no escaping the perverse logic of the Holocaust: While the Nazis killed the Jews, the Jews in turn sacrificed the 'Muslims' (die Muselmänner)" (45).
  • [12] One of distinguished Jewish philosopher of our times, a famous scholar of Muslim philosophy and Islamic cultural tradition, Emil Fackenheim, has also made an attempt to express, "in a language of 'restrained outrage'", some of the pain and puzzlement that he feels at the spectacle of the Muselmänner. As Manzoor remarked: "Fackenheim also believes that the manifestation of 'Musulmannhood' at the camp tells us something novel and extraordinary about the human condition: it reveals a truth about man in general that is universal and irrefutable. Hence, the disconcerting thought: 'who dares assert that, had he been there and then rather than here and now, he would not have been reduced to a Muselmann?' (100). Nevertheless, such an insight also generates its own paradoxes, as when he questions whether any Kantian belief in humanity is warranted in the age of Auschwitz? For, "then and there, one kind of common man – the Muselmann – was made into a uniquely uncommon victim, while the other, the manufacturer of the victim was made – let himself be made – into a uniquely uncommon criminal.' (273). (Emil Fackenheim: To Mend the World: Foundations of Post-Holocaust Jewish Thought, Schocken Books, New York, 1982, 215). (Should one also add that, if the Muselmann is the most original, most characteristic product of the entire Nazi Reich, as Fackenheim asserts, is he not, by the same token, the most original, most characteristic product of the Jewish imagination as well?) However, the most bizarre and pointless display of Fackenheim's philosophical dexterity concerns the following theological query: "At Auschwitz other free persons were reduced to Muselmänner, to the living dead. This is a novum in human history and an unprecedented human scandal. We ask: Could Jesus of Nazareth have been made into a Muselmann?'" See: Manzoor, op. cit., 11.
  • [13] "If, according to his actual analyses (Guenoun Denis, Hypothesis sur l'Europe: Un essai di philosophie, 2000), Islam is the 'external enemy' [...] and Judaism is the 'internal enemy', the question that remains is indeed the question of a relation, the relation between Europe and the Jew, and the Arab." See: Gil Anidjar, The Jew, the Arab: A History of the Enemy, Stanford University Press, Stanford, 2003, xxii. Anidjar suggests that the concept of the enemy, in its absence from the canon, is structured by the relation of Europe to both Jew and Arab. In this, Anidjar's book represents the first attempt at thinking together the "Jewish Problem" and the "Muslim Problem" in the history and present of Western civilization. He further argues that the distinction between the theological and the political – corresponding to the crucial modern opposition between the religious and the secular – only emerges with the characterization of the Jew as a (internal) theological enemy and the Arab as a (external) political enemy of the Christian Europe.
  • [14] Blumenthal Nahman, "On the Nature of the Nazi Idiom" in Yad Vashem Studies I, 1957, quoted from, Gil Anidjar, The Jew, the Arab: A History of the Enemy, Stanford University Press, Stanford, 2003, 113. Blumenthal added: "The Jews, victim of the Nazis, used Nazi words to a great extent because their own language lacked these words – because they lacked the concept adequate to the terrible tortures invented and practiced by the Germans. Among the saddest things, perhaps, is that the killers imposed even their language upon their victims" (114).
  • [15] Agamben, Remnants, 85.
  • [16] Ibid. 156.
  • [17] Ibid. 71-72.
  • [18] Ibid. 81.
  • [19] Ibid. 158.
  • [20] Alexandar Garcia Duttman, The Gift of Language: Memory and promise in Adorno, Benjamin, Heidegger, and Rosenzweig, Library of Jewish Philosophy, Syracuse University Press, New York, 2000, 97.
  • [21] Ibid. 100.
  • [22] Theodor Adorno, Philosophische Terminologie, Suhrkamp Verlag, Frankfurt am Maine, 1974, Vol II, 181.
  • [23] Alexander Garcia Düttmann, The Gift of Language, 2000.
  • [24] Stathis Gourgouris, Dream Nation, Stanford University Press, Stanford, 1996, 237.
  • [25] Elie Wiesel, "For Some Measure of Humanity", Sh'ma. A Journal for Jewish Responsibility, 5, October 31, 1975, 314.
  • [26] Shoshana Felman and Laub Dori, Testimony: Crisis of Witnessing in Literature, Psychoanalysis and History, Routledge, New York and London, 1992, 35.
  • [27] Jean-Francois Lyotard, The Differend: Phrases in Dispute, University of Minnesota Press, Minneapolis, 1988, 5, 8.
  • [28] Primo Levi, The Drowned and the Saved, Random House, New York, 1989, 83-84.
  • [29] J. M. Bernstein, "Bare Life, Bearing Witness: Auschwitz and the Pornography of Horror", in: Parallax, No.1/2004, 5.
  • [30] Jelica Sumic-Riha, "Testimony and the Real", in: Parallax, No.1/2004, 19. See: Andrew Norris, Politics, Metaphysics, and Death: Essays on Girgio Agamben's Homo Sacer, Duke University Press, Durham, 2005.
  • [31] Jon Elster, Closing the Books: Transitional Justice in Historical Perspective, Cambridge University Press, Cambridge, 2004, 166. Ruti Tietel insists that reparatory justice makes only one moment in a complex system of transitional justice: "Even the limited form of criminal sanction advances the purposes of denunciation of crime, vindication of victims, and the legal system." Ruti G. Teitel, Transitional Justice, Oxford University Press, Oxford, 2000, 129.
  • [32] Otto Kirchheimer, Political Justice: the Use of Legal Procedure for Political Ends, Greenwood Press, Westport, 1961, 308.
  • [33] "The weight of the precedent is not the proceedings but, rather, in the way it has shaped the pervasive understanding of transitional criminal justice. In the last half century, Nuremberg has shaped the dominant scholarly understanding of successor justice with the shift in approach, from national to international processes, as well as from the collective to the individual [...] as well as offences such as the crime against humanity." See: Ruti G. Teitel, Transitional Justice, Oxford University Press, Oxford, 2000, 31.
  • [34] "Article Seven deals with the less interesting and persuasive of the two defences, the so-called Act of State Doctrine. In simplest form the Doctrine is the embodiment of the notion that the head of a state is under no circumstances to be subjected to criminal liability by any other country or groups of countries. Article Seven of the Charter dismisses this doctrine quite peremptorily. The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment [...] It is difficult, I think, for us to get very excited about the elimination of this defense – indeed, it is not terribly easy to see how or why the Act of State Doctrine would ever get formulated in the first place. What seems to be involved is an excessive, metaphysical preoccupation with the nature and sanctity of the nation-state. Not surprisingly, perhaps, the importance of the Act of State Doctrine was championed by the government of the United States in 1919. At that time the argument for the doctrine was articulated this way: 'This [the Act of State Doctrine] does not mean that the head of the State, whether he is called emperor, king, or chief executive, is not responsible for breaches of the law, but that he is responsible not to the judicial but to the political authority of his country. His act may and does bind his country and render it responsible for the acts which he has committed in its name, and its behalf, or under cover of its authority; but he is, and it is submitted that he should be only responsible to his country, as otherwise to hold would be to subject to foreign countries a chief executive, thus withdrawing him from the laws of his country, even its organic law, to which he owes obedience, and subordinating him to foreign jurisdictions to which neither he nor his country owes allegiance or obedience, thus denying the very conception of sovereignty.' [...] The same point was put more tersely by one of the attorneys for the Nuremberg defendants, Dr. Herrnan Jahrreiss: the leaders of Germany ought not, he argued, to be prosecuted for the fact that the German state waged aggressive war, because individual responsibility in such circumstances simply 'cannot take place as long as the sovereignty of states is the organizational basic principle of interstate order'." See: Richard Waserstrom, "The Relevance of Nuremberg", in: Marshall Coen, Thomas Nagel, and Thomas Scanlon, (eds.), War and Moral Responsibility, Princeton University Press, Princeton, New Jersey, 1974, 136-158.
  • [35] However significant it may be, legal overcoming of the past under the auspices of international community cannot guarantee that Serbian state and society, for example, would lastingly and unconditionally renounce their criminal past. Furthermore, all facts imply that the repressed past would be preserved within the state of total denial. Certainly, it would be naive to believe that organized silence about individual guilt, above which hovers the shadow of collective irresponsibility, could secretly get away from the continuity of responsibility for crimes against humanity. Repression and denial of a criminal past will only prolong international expulsion and internal agony in all parts of the former Yugoslavia, especially in Serbia.
  • [36] Igor Primoratz, Justifying Legal Punishment: Studies in Applied Philosophy, Humanities Press, New Jersey and London, 1989, 45.
  • [37] Jacques Derrida, "Force se loi: 'Le Foundament mystique de l'autorite'", Cardozo Law Review, July-August, 1990.
  • [38] "The Eight Amendment of the United States Constution forbids 'harsh and unusual punishments'. For a long time this ban was the subject of many discussions among American legal scholars and philosophers, about whether death penalty should be considered 'harsh and unusual', and thus unconstitutional and morally unacceptable." See: Igor Primorac, Kazna, pravda i opce dobro, Biblioteka Filozofska istrazivanja, Zagreb, 1995, 197.
  • [39] J. Cottingham, "Punishment and Respect for Persons" in: M. A. Stewart, ed., Law, Morality and Right, D. Riedel, Dordrecht, 1983, 430.
  • [40] Gary J. Bass, "Milosevic in the Hague", in: Foreign Affairs, May-June 2003, Vol. 82, No. 3/2003, 82-96.

Published 2006-10-05

Original in English
First published in Belgrade Circle Journal 1-4/2006

Contributed by Belgrade Circle Journal
© Obrad Savic/Belgrade Circle Journal
© Eurozine

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Marcus Rediker
Ghosts on the waterfront
Historian Marcus Rediker describes the sailing ship as linchpin of the emergent transatlantic economic order and instrument of terror for slaves transported from Africa, going on to discuss European harbour cities' role in the slave trade and their responsibilities in reckoning with its moral legacy. [more]

Literature     click for more

Olga Tokarczuk
A finger pointing at the moon
Our language is our literary destiny, writes Olga Tokarczuk. And "minority" languages provide a special kind of sanctuary too, inaccessible to the rest of the world. But, there again, language is at its most powerful when it reaches beyond itself and starts to create an alternative world. [more]

Piotr Kiezun, Jaroslaw Kuisz
Literary perspectives special: Witold Gombrowicz
The recent publication of the private diary of Witold Gombrowicz provides unparalleled insight into the life of one of Poland's great twentieth-century novelists and dramatists. But this is not literature. Instead: here he is, completely naked. [more]

Literary perspectives
The re-transnationalization of literary criticism
Eurozine's series of essays aims to provide an overview of diverse literary landscapes in Europe. Covered so far: Croatia, Sweden, Austria, Estonia, Ukraine, Northern Ireland, Slovenia, the Netherlands and Hungary. [more]

Debate series     click for more

Europe talks to Europe
Nationalism in Belgium might be different from nationalism in Ukraine, but if we want to understand the current European crisis and how to overcome it we need to take both into account. The debate series "Europe talks to Europe" is an attempt to turn European intellectual debate into a two-way street. [more]

Conferences     click for more

Eurozine emerged from an informal network dating back to 1983. Since then, European cultural magazines have met annually in European cities to exchange ideas and experiences. Around 100 journals from almost every European country are now regularly involved in these meetings.
Making a difference. Opinion, debate and activism in the public sphere
The 25th European Meeting of Cultural Journals
Oslo, 29 November - 2 December 2013
Under the heading "Making a difference. Opinion, debate and activism in the public sphere", the 2013 Eurozine conference focused on cultural and intellectual debate and the production of the public sphere. [more]

Multimedia     click for more
Multimedia section including videos of past Eurozine conferences in Vilnius (2009) and Sibiu (2007). [more]

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