Evidence, Justice, and Truth: An Interview with Nataša Kandić

Nataša Kandić, founder and director of the Humanitarian Law Center in Belgrade, Serbia, visited the International Institute in January 2007 and delivered the lecture, “Establishing Truth and Responsibility in Post-Conflict Societies.” Kandić is well-known for her active research of war-time abuses, representing victims in the courtroom, and speaking out against human rights violations. Kandić established the Humanitarian Law Center (HLC) in 1992 following the outbreak of armed conflict in the former Yugoslavia. The HLC’s investigations of human rights abuses during the wars were crucial to the work of the International Criminal Tribunal for the former Yugoslavia (ICTY) at The Hague. Among numerous awards for her humanitarian work, Kandić received the Human Rights Watch Award in 1993, and was recognized in a special issue of Time magazine, “60 Years of Heroes,” as one of 60 individuals or groups honored for their significant contributions to the betterment of the world during the past 60 years (Europe Edition, 2006).

Andrew Herscher (U-M professor of architecture, Slavic languages and literatures, and history of art) conducted the following interview with Nataša Kandić at the International Institute on January 22, 2007. Herscher worked for the International Criminal Tribunal for the former Yugoslavia as an investigator and expert witness on the war-time destruction of cultural heritage in Kosovo. He currently serves as coordinator of the Rackham Interdisciplinary Seminar on Human Rights.

Andrew Herscher (AH): My first question is a personal one. When my research for the ICTY (International Criminal Tribunal for the former Yugoslavia) was presented in the Milošević trial, I felt a terrible sense of incompleteness—not because Milošević was not guilty and not worthy of blame, but because Milošević seemed to absorb all the blame for the violence that took place in Kosovo. I wonder what your impressions were of the Milošević trial, and of the work that war crimes tribunals do more generally.

Nataša Kandić (NK): I agree with your feelings about listening to and watching the trial. Many of Milošević’s very close colleagues and assistants were happy with his defense because they were certain nobody would accuse them—nobody would prosecute and punish them because Milošević was tried and accused of everything. Yet, in the Milošević trial, as in other war crimes trials, evidence always leads to institutions and to the many individuals who are involved in war crimes. For example, the very famous Scorpions unit, which committed crimes against Muslims in Srebrenica and against Albanians in Kosovo, was represented as a paramilitary formation. But when you listen to the story of the unit’s formation through witnesses, members of the unit, and written evidence of The Hague Tribunal, it is clear that it was formed by the state security service of the Serbian Police. It was not a criminal group—it was formed into an institution and instructed by individuals in very high-level positions.

AH: Yet, in war crimes tribunals, it is an individual who is put on trial, and not an institution. Can a war crimes tribunal expose the responsibility of institutions?

NK: In my opinion, the ICTY has managed to collect a large amount of evidence about the past—not only about accused individuals, but also about institutional policy and state responsibility. All trials at the tribunal have led to the conclusion that behind thousands of culpable individuals there was always the institution: orders from the institution, institutional responsibility for silence, for denial, for everything that happened starting from crimes to the establishment of a culture of impunity.

AH: War crimes tribunals do not only cast judgments, but also gather historical evidence, although sometimes that evidence makes justice very difficult to obtain. I’m thinking, for example, of the trial of Dragan Erdemović, who was a perpetrator of violence at Srebrenica but who claimed to be a victim himself. When he was making his plea he said that if he didn’t kill Muslims, the Serbs would kill him. He appears as both a perpetrator and a victim, and I think this is not such an uncommon situation. People are often forced into the roles of perpetrators of violence by state institutions or their emissaries. Moreover, people who were at one time victims can become perpetrators and perpetrators can also become victims.

NK: The Erdemović case was very important for the tribunal. Without Erdemović the prosecutor could not get information about Srebrenica. Erdemović opened up the case, but if you listen to victims from Srebrenica, all of them are very angry because they cannot believe that someone who killed hundreds of Muslims received only a five-year prison sentence. It’s always a dilemma: what is justice? To punish someone like Erdemović for only five years in exchange for information to expand the case? What is in the interest of justice? I agree with the ICTY judges that it was very important to expand the case in order to identify the others behind Erdemović, but that is not enough for the victims.

AH: This suggests that there might be a conflict between the interest of truth and the interest of justice. In other words, to find out what really happened in Srebrenica, it was necessary to give one of the perpetrators a reduced sentence, to save him from the punishment he deserved, the most severe punishment possible. Is it possible to balance our interest in truth and our interest in justice?

NK: Justice requires time. At the time of Erdemović’s trial, it was very important for the prosecutors, who did not have knowledge of many important Serbs involved in ordering the crimes in Srebrenica, to get more information to open the case and locate others. The plea agreement was very important. The prosecutors proposed five years for Erdemović because they planned to re-open the case. Now the case is completely opened. All officers at the highest levels were arrested and they are at The Hague. But the victims cannot understand. From a distance it is very difficult to understand.

AH: So you are suggesting that there is a politics of patience and that justice requires this politics? It seems that patience can also be a casualty of war. After trauma, along with all their other losses, people often lose their ability to be patient.

NK: This is the main problem with war crimes trials, whether at The Hague or domestic war crimes trials. These trials are focused on perpetrators, not on victims. The main prosecutor of the ICTY, Carla Del Ponte, very often says that she fights for justice for victims. It is very important to say this, but she and other prosecutors are focused on evidence, on how to prosecute indictees, and on how to punish them. There is no space for victims. Victims play an important role in supporting indictments and supplying evidence against perpetrators, but we need other instruments to pay attention to the victims.

AH: That brings up an important issue regarding collective memory and its powerful role before and after war. Before the Yugoslav wars, the media in some republics attempted to shape, if not manipulate, collective memory, and this manipulation fostered and legitimated violence between the citizens of different republics. What role can collective memory play now for victims of this violence?

NK: After the Second World War, the communist government decided to stop discussion of what happened during and immediately after the war. The truth was covered up because the government wanted to build a “new” society. None of the surviving family members could ask what happened to their loved ones. They were not allowed to ask, “Where are the graves?” To date, we still have many people who do not know what happened to their family members. If we continue with the same approach, covering up what happened between 1991–1999, we will see in 50 years the same violations. We should not permit silence or allow national governments to create social memories based on their interpretation of the past.

Kandić’s lecture was part of U-M’s 20th Anniversary Reverend Dr. Martin Luther King, Jr. Symposium; the International Institute’s “Citizenship at Risk” series; the Rackham Interdisciplinary Seminar on Human Rights; and the “Revisiting Yugoslavia’s Dissolution” series.

Sponsors of Nataša Kandić’s visit included: Center for Russian and East European Studies, Center for European Studies/European Union Center, Center for International and Comparative Studies, Institute for the Humanities, Department of Slavic Languages and Literatures, and Taubman College of Architecture and Urban Planning.

Extended audio of this interview is available online at http://www.ii.umich.edu