By Aleksandar Jokic
(Adapted from “Introduction: Yugoslavia Dismantled and International Law” in International Journal for the Semiotics of Law (2006) 19: 339-346.)
“I think one has to say it’s not just simply a matter of capturing people and holding them accountable, but removing the sanctuaries, removing the support systems, ending states who sponsor terrorism.”
- Paul Wolfowitz, “How Wide a War?” PBS Newshour; September 26, 2001.
“We are now paying the wages of the 1990s, our holiday from history.”
- Charles Krauthammer, The Washington Post. Friday, February 14, 2003; Page A31
Long before Paul Wolfowitz had announced that the United States were entering into the business of “ending states”—according to the wishes of ideologues like himself who are close to power—the sole superpower had already accomplished some feats in this allegedly novel discipline: case in point, the dismantled state of Yugoslavia. Yet the 1990s is a period many a belligerent and warmongering neo-conservative enjoys referring to as “the holiday from history”: an era of purported irresponsibility (mainly) of democrats in power, in particular President Clinton, who were taking a sabbatical from the relentless demands of world politics. The 1990s may have been a decade when the key Western leaders could justifiably appear fundamentally unserious for many reasons. But, this was not, however, a period of inactivity on the imperialistic, hegemonic front. The destruction of Yugoslavia shows this very well. Let us take a more careful look.
Beginning and End of Yugoslavia
The state of Yugoslavia (so named in 1929) had been in existence from the end of World War I (initially named Kingdom of Serbs, Croats and Slovenes) until the 1990s, when it was dismantled. In 1992 the name stood for only two (Serbia and Montenegro) out of six former socialist republics that made up the post World War II Democratic Federal Yugoslavia (in 1963 renamed Socialist Federal Republic of Yugoslavia). Since 2003, Yugoslavia is literally no longer, as no country bears that name. Interesting questions could be raised at this point: What happened to this state—Yugoslavia—that was in existence for roughly eight decades? Who ended it and in what way? What role did international law play in achieving the final outcome? And what might be the source, significance, and purpose behind the international legal and historical narratives regarding Yugoslavia’s disappearance produced in the West?
“The Self-Destruction of Yugoslavia” vs. “The Hegemon did it”
These are broad questions, and represent only the outer limits of the general theme a brief article like this can touch upon. Still, on the question of ‘‘what happened to Yugoslavia?’’ we can discern two broad categories of answers. In the ever growing, generally unanimous, and quite repetitive literature on this question (including endlessly recurring pronouncements by politicians or activists in the media, and unfortunately substantially absorbed within what passes for scholarship in the West) the dominant view without any doubt is that Yugoslavia fell apart once various internal contradictions could no longer be kept under control. Call this ‘‘the self-destruction of Yugoslavia’’ account of what brought this state to the end. The competing account which offers to explain how the state of Yugoslavia ceased to exist focuses on the emergence, in the post Cold War period, of the agency of a single, unchallenged superpower: the United States of America. Call this ‘‘the Hegemon did it’’ account of how Yugoslavia was dismantled.
Given that the principal mission of the Reiss Institute for Serbian Studies is to challenge the fictions and fabrications about the sources of violence in the Balkans during the 20th century, and promote accurate history of Yugoslavia and Serbia, this and other contributions will argue in favor of the latter and against the former approach to answering the question about the way Yugoslavia went out of existence as a state.
The Reformist Optimism vs. The Traditionalist Realism
A similar polarization can be identified between two camps offering answers to a related question: ‘‘What role did international law (or appeals to it by the powerful states) play in the Yugoslavia’s end game?’’ While on the one side there are those who offer encouraging accounts of the reform of international law as a result of attempts to be creative in its applications to the events in Yugoslavia of the 1990s, there are, on the other side, those who hold the contrary view, that it was precisely the instrumentalization of international law (and the UN) by the sole superpower that doomed Yugoslavia. Already, very early in the 1990s, and throughout that decade, Yugoslavia became a veritable playground for testing various policies of the phantom ‘‘international community’’ (often used euphemistically to refer to the U.S.) inevitably justified in terms of applying (often novel forms of) international law (typically through various resolutions of the UN). These policies, in reality social experiments on a grand scale, ranged from an early imposition of economic sanctions against Yugoslavia in the name of ‘‘human rights’’ to the 78-day humanitarian bombing of the country by NATO in 1999.
Regarding all these initiatives a vast literature was developed in their support by scholars, activists, and activist scholars, who see as the end result positive reform of international law. Call this position: ‘‘the reformist optimism’’. A much more modest number of scholars whose voice it is not easy to hear through the thunders of the former group have struck cautionary notes that these ‘‘reforms’’ rather than moving things in positive direction in fact debase any decent conception of law (including international law). Call this position: ‘‘the traditionalist realism’’. The contrast between reformist optimism and traditionalist realism cannot be overstated. For example, while proponents of the former position view the state sovereignty as a relic of a bygone era and praise globalization—no surprise then that on the question of ‘‘What happened to Yugoslavia?’’ they all adhere to the ‘‘self-destruction’’ theory—advocates of the latter perspective insist on the values of sovereignty and caution against predatory globalization—no surprise there either if we learn that they find as more plausible ‘‘the Hegemon did it’’ theory on the dismantling of Yugoslavia. But the greatest disparity between the two views lies in the steadfast refusal of traditionalist realism to endorse the reckless and purposeful confusion of moral sentiments and narratives (always by some Westerners) for expertise in international law (particularly international criminal law) pedaled by reformist optimists. Nowhere has this contrast come in as sharp a focus as with respect to exactly opposite opinions regarding legality, legitimacy, and justification for erecting ad hoc criminal tribunals (such as ICTY and ICTR). Thus, as a typical reformist optimist ‘‘reasoning’’ on this matter one could offer the following example formulated by a philosopher and lawyer interested in the ethics of international affairs:
When an international tribunal is set up to address mass murder or ethnic cleansing perpetrated by members of a State against fellow members of the same State, a relatively new form of international law is put on the table. This is the most controversial forum for international law. It is the most controversial because it implies that there are international normative standards that govern how States act within their own borders, and toward their own subjects.” (Larry May. 2005. Crimes Against Humanity: A Normative Account. Cambridge: Cambridge University Press; p. 15)
Pronouncements like this are ubiquitous in what passes for scholarship on international criminal law since the end of Cold War; perhaps what explains how a clear non sequitur like this can get by editors of even most prestigious university presses is the fact that this idea sounds so familiar to everyone involved, despite its total absence of intellectual merit. By contrast, any traditionalist realist would be quick to point out that the fact that an ‘‘international’’ tribunal has been set up implies nothing about the existence of international standards. The opposite, however, may be the case: if such standards existed, then it could be legitimate (and perfectly legal) to erect international criminal tribunals, assuming of course the mise en force of a binding treaty or the consent of the country whose criminal jurisdiction is thereby subsumed by international law.
Prelude to Other Aggressions
‘‘The Hegemon did it’’ perspective may well extend beyond the destruction of Yugoslavia. ‘‘Humanitarian bombing,’’ carried out in violation of international law, edged the world toward an apparent decriminalization of aggression, the ‘‘supreme international crime,’’ according to the Nuremberg Tribunal. The euphemistic ‘‘use of force’’ in Afghanistan, Iraq or Libya continues to be the object of justification in the name of democracy, human rights, war on terrorism, struggle against impunity, responsibility to protect, and the necessity to never again permit genocide to be committed, and the like. Yet, putting an end (precisely) to the very use of force in international relations—in particular when carried out in violation of international law—was the essential raison d’être of the establishment of the United Nations, and lies at the heart of its Charter.
Vocabulary For Interventionism
Just as alleged concerns for domestic human rights violations in other countries lead to the extreme conceptual aberration (under the rubric of “humanitarian intervention”) used to justify the right (or even duty, in the form of something called “responsibility to protect” or R2P) of powerful states to use force—that is aggress weaker states on the pretext of domestic human rights abuse—similar conceptual atrocities were committed enabling an entire vocabulary for (Western) interventionism during the 1990s—the period when allegedly nothing but total neglect of burning issues in foreign affairs happened. Let us consider a few examples. Concerns for impunity found in the mainstream scholarship on international criminal law in this manner lead to impunitism: actual decriminalization of aggression, while emphasizing lesser (‘‘and included’’) crimes, such as crimes against humanity, violations of the Geneva Conventions, and even genocide. A particular conceptual perversion occurs when concerns for genocide become transfigured into genocidalism in its two manifestations: (i) the purposeful neglect to attribute responsibility for genocide in cases when overwhelming evidence exists, and (ii) the energetic attributions of ‘‘genocide’’ in less than clear cases without considering available and convincing opposing evidence and argumentation.
We may then call impunitism the inversion of justified concerns that political leaders who commit gross human rights abuses against the citizens of their own countries can do this without any consequences, accountability or trial, into a justification for the commission of a greater crime—aggression—with full impunity for leaders of powerful states who authorize this truly international offence. Thus, for instance, NATO’s bombing of Yugoslavia (along with the use of weapons prohibited by international conventions and the targeting of civilian infrastructure, such as television stations, passenger trains, religious monuments, hospitals, post offices, schools, and the Chinese Embassy) could not be prosecuted by the ICTY, as the crime of aggression is not part of its ad hoc jurisdiction. And furthermore, the ICTY prosecutor quickly dispatched her investigation of the ‘‘incidents’’ brought to her attention, and declared NATO’s conscience clear, apparently oblivious to the fact that a quasi-NATO body’s denial of wrongdoing by its virtual self could be perceived as unseemly and inconsistent with the principle of nemo judex in sua causa.
Impunitism occurs when a stated struggle against impunity results in the commission of crimes (in particular aggression) with impunity. Ever-inventive Western ideologues continuously developed in the 1990s (and beyond) new discourse that encouraged aggression. Some of the novel constructs were ideas that may be labeled as ‘‘failed-stateism,’’ and ‘‘tyrannicalism’’: that is, military interventions in failed states or those with tyrannical regimes are justified. No answer is provided, however, as to who will determine, in a ‘‘globalized’’ (economically, politically, and militarily) context, just which states ‘‘are’’ failed or tyrannical, and upon which criteria would this be determined? There are no existing legal principles that could guide such a process of identification, and subsequent stripping of state sovereignty (and therefore of citizens’ will or their popular sovereignty) in targeted states. As it stands, what exists is recourse to force, the exercise of which is indeed proscribed by international law? That the validity of domestic law would be so vulnerable, that it could evaporate on the whim of some legally undefined and unknown conception of ‘‘state failure’’ or ‘‘tyranny’’ (In whose opinion? From what standpoint? With what interests?) is legally and morally abhorrent. These various and tendentious conceptual acrobatics are perhaps manifestations of a distortion which transpires when concerns for alleged human rights violations give rise to humanrightism: a practical transformation of human rights that inverts the concept, from one premised on the protection of people from the violence of states, to one justifying the application of violence (and violations of the letter and spirit of international law) by the world’s most powerful states against weaker ones.
Hence, the 1990s, far from the neoconservatives’ phantasm of idleness, neglect, and irresponsibility about foreign affairs that facilitated the occurrence of the tragedies on September 11, 2001 was not a “holiday from history” but a very busy time of constructing all kinds of ideological stratagems that would facilitate low and middlebrow selling of a series of aggressions to the unsuspecting American public. Long before neoconservatives came to power and managed to add just another such ideological stratagem—war on terror—there was the process of ending Yugoslavia that was the most prolific period for such inventiveness. So back to two more points on ending the state of Yugoslavia.
The Myth of Ancient Hatreds and the Actions by the Hegemon
Although often repeated in the West the claim about “ancient ethnic hatred” as somehow accounting for the eruption of violence in 1990s Bosnia and Herzegovina can be fairly easily dispelled. A few simple and well known facts undermine this account: when paying attention to the geography of violence we see that the most brutal episodes during the process of destruction of Yugoslavia occurred almost entirely within regions that were the most ethnically “mixed”—in particular Bosnia-Herzegovina in which the various nations of Yugoslavia were most intermingled. Prominent Yugoslav sociologist Ruža Petrović had established in her work that in the period from 1953 to 1981 most of the territories of Yugoslavia had became increasingly heterogeneous, which was manifested in an increase in the rates of intermarriage between members of the different national groups, but she emphasized that these were particularly common between Serbs and Croats, and between Serbs and Muslims in Bosnia-Herzegovina. And, not surprisingly, Bosnia-Herzegovina had the highest percentage of “mixed” children—15.9 percent overall—also concentrated in the most mixed areas. Who, then, were these people who both totally hated each other and intermarried to such a degree, and had children together?
Yugoslavia did not self-destruct. Reliable documents exist indicating that Yugoslavia was dismantled by decisive influences from the outside world, in particular the US. Of critical importance in this process was The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991, Public Law 101-513, appropriated funds for the fiscal year ending September 30, 1991, passed on November 5, 1990 a year before the break up of Yugoslavia. Citing particularly disastrous provisions of this law, a CIA report mentioned three weeks later in the November 28, 1990 New York Times predicted that this would provoke a bloody civil war in Yugoslavia. The law cut off all aid, trade, credits and loans from the US to Yugoslavia within six months. It commanded separate elections in each of the six republics that made up Yugoslavia, requiring State Department approval of election procedures and results before separate republics could count on the resumption of aid. It also required US personnel in all international financial institutions like the World Bank and the International Monetary Fund to enforce this cut-off policy for all credits and loans. Additionally, it allowed only for forces that the US State Department defined as “democratic forces” to receive funding. This meant that only small right-wing nationalist parties would receive funding in the midst of an instantly generated financial crisis that was engineered as the consequence of this bill. The impact was, as predicted, completely devastating.
Thus the political ideologies of extreme nationalism everywhere but especially in secessionist republics where right wing parties won the free elections of 1990 were a result of these combined external influences. However, those newly constituted nationalist ideologies aiming to construct homogenous nation-states, and invoking allegedly “primordial” communities, stood in sharp contrast to the actual, living cultures in the existing heterogeneous communities, as shown above. Hence, the wars of the Yugoslav secessions and successions were not a result of “ancient ethic hatred,” but, exactly to the contrary, merely a necessary tool—conceived outside the country—for un-mixing the well integrated communities. In less heterogeneous areas this un-mixing often could be achieved without violence, using bureaucratic means. Resorting to physical violence, however, occurs where cultural geography is most heterogeneous, thus the carnage in Bosnia-Herzegovina. We may even contemplate to postulate the following anthropological principle: The more an area is mixed, the more drastic a measure is necessary to bring about homogenization of the community (in the form of political sovereignty of a given group enjoying overwhelming majority in the area). And how was this accomplished? The answer is clear: the Hegemon did it. Hence the superpower was in the business of ending states long before the phrase was arrogantly uttered on behalf of the allegedly novel neoconservative policy. Imperialism in the United States enjoys bipartisan and continuous support.
(Aleksandar Jokic is Professor of Philosophy at Portland State University. Reprinted with permission of the author; all rights reserved)