by Judith Armatta. Durham: Duke University Press, 2010. 576pp. Cloth $39.95. ISBN: 9780822347460. Reviewed by Mark A. Drumbl, Washington & Lee University, School of Law. E-mail: drumblm [at] wlu.edu.
pp.177-180
TWILIGHT OF IMPUNITY chronicles the prosecution of Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia (ICTY). Milosevic was elected President of Serbia in 1989, President of the Republic of Serbia in 1990, and then President of the Federal Republic of Yugoslavia in 1997. In 2000, he lost elections. He was ousted from power soon thereafter, then arrested in 2001. At the ICTY, Milosevic – colloquially known both as the “Butcher of the Balkans” and the “Savior of the Serbs” – faced 66 charges involving genocide, crimes against humanity, and war crimes arising from nearly a decade of bloodbath in Kosova, Croatia, and Bosnia. He was initially indicted (for crimes in Kosova) while still a sitting head of state. (I follow the author in omitting accents and diacritical markings. I also follow her lead in the use of the Albanian Kosova instead of Kosovo.).
Milosevic’s trial ended on March 11, 2006. The process came to a close without conviction or sentence. Law did not draw the final curtain. The trial’s end came by way of death – Milosevic’s own – in his jail cell after four years’ of proceedings. In this regard, Milosevic cheated the very verdict his concerted dilatory antics had sought to postpone indefinitely.
Judith Armatta, a human rights lawyer and journalist, spent many days over nearly three years attending at Milosevic’s trial in The Hague. TWILIGHT OF IMPUNITY emerges as the ensuing work product. Although she modestly claims that TWILIGHT OF IMPUNITY is “not the definitive trial record” (p.x), it definitely serves as the definitive book about the trial.
Armatta’s encyclopedic compendium is impeccably researched, meticulous, detailed, prudent, and careful. It distinguishes itself as a must-read.
Her chronology follows that of the trial. She begins with the Kosova part of the indictment, then moves to Croatia, and then to Bosnia. She then explores Milosevic’s defense, which was partial in the sense he never came to answer for many of the charges leveled against him – in particular, that of genocide at Srebrenica. Textually, Armatta’s work is accessible. It is jargon-free, denuded of elliptical reasoning, and liberated from nomenclature. Yet it still conveys the complexities of substantive law, the improbabilities of securing convictions, and the often Sisyphean task of proving facts as matters of law rather than accepting them as self-evident happenings.
Notwithstanding its quality, TWILIGHT OF IMPUNITY may unduly privilege [*178] description over analysis. It occasionally loses the reader amid facts, names, and dates. The richness of its details overwhelms. Armatta hovers close to the canvas. She tilts towards exposing the parts rather than abstracting their sum.
If Armatta had to prosecute Milosevic all over again, she would. To be sure, she would do some things differently a second time around. She would have the tribunal be more assertive in terms of containing Milosevic’s outbursts and delaying tactics; to oblige him to have appointed legal counsel earlier and consistently; too be less “trusting” of him (p.429); less lenient with him; to subject his health to more rigorous oversight; to make him actually take those medications and abandon cigarettes and whiskey. She is, of course, correct. Each of these facts, and the judges’ shared timidity, decelerated the pace of justice and permitted vexation, abuse, and tripe to infect – if not cast a pox upon – the courtroom.
In particular, TWILIGHT OF IMPUNITY unveils the corrosive effects of Milosevic’s self-representation. For Armatta, this was the tribunal’s “most grievous mistake” (p.434), which enabled Milosevic to treat the trial “as a joke” (p.70). She presents the “struggle with self-representation” potentially as the trial’s “greatest legacy to future war crimes trials” (p.434). That said, it remains unclear whether merely appointing counsel effectively can guard against grandstanding and delay. Charles Taylor – currently being prosecuted by the Special Court for Sierra Leone – is ably represented by talented defense counsel who, in turn, has boycotted the trial (contending that the Court is political), missed deadlines, and generally exhausted the patience of judges. The Taylor trial has “lasted more than twice as long as planned” (Simons, 2011).
Armatta is less critical of another sore-point, namely the Prosecutor’s decision to consolidate the indictments against Milosevic into “one mega-trial,” rather than proceed sequentially (p.6). She delivers an elegant defense of the Prosecutor on this score, and in this regard neatly countervails convention.
Armatta remains a devotee of courthouses and jailhouses as modalities of post-conflict justice. The problem for her, at its core, is that Milosevic got too much due process. In the end, then, her treatment of the Milosevic trial, however impressive, is suggestive only of cosmetic reforms. Shorn from her analysis is whether or not Milosevic’s extreme evil is at all cognizable by law, let alone international law and temporary institutions. For Armatta, international criminal law delivers justice. It can do better, but it is capable. She dismisses challenges to this assumption (p. 8).
She is an optimist. Armatta looks for the good – not in Milosevic, to be sure, but in the process of prosecuting Milosevic. She is wise to point out that Milosevic’s premature death did not void the relevance of the trial. For Armatta, “the proceedings against Milosevic accomplished a great deal” (p.433). The mere fact he was charged, detained, and had to defend himself chips away at the impunity that has cloaked too many human rights abusers. Trials do not need to conclude in order to fulfill their expressive purposes, at least in part. In the case of genocide in Bosnia generally, [*179] it may be that the tangle of loose ends that lingers from the Milosevic prosecution could be resolved by verdict in the ongoing Karadzic trial.
Armatta’s account of the relevance of the trial contrasts with others who hint at its irrelevance. Milosevic’s demise, after all, was political; and his legacy, according to Florian Bieber, was anemic in that no political party came to assume the mantle of his politics (Bieber, 2011). For Bieber, Milosevic’s blip of martyrdom at his death had little to do with the trial. Nor did its evanescence owe anything to the trial either. It was all about politics. The theater of atrocity law, then, turned out to be a side-show.
Cruelly, one legacy of the aborted ICTY prosecution might be the hollowing of other modalities of justice, such as Bosnia’s state responsibility claim at the International Court of Justice (ICJ). Armatta, to her great credit, does not conceal this unattractive externality of the ICTY’s work or the jitteriness of the ICJ itself (pp.315-316). The ICTY fought hard to individualize guilt upon the shoulders of Milosevic and 160 other indictees. In this process, it resisted the collectivization of responsibility. The ICTY judges followed their Nuremberg predecessors in preferring that the crimes be treated as crimes of men rather than crimes of abstract entities. Yet, in the end, collective violence against collective victims inexorably is about groups, bureaucracies, and nations. It is communal in scope and nature. Many persons were responsible for atrocity throughout the Balkans. By placing responsibility upon a handful of people, the law yields only a partial print of justice.
Armatta points out that Serbs were “propagandized to fear what was falsely characterized as a rising tide of Muslim fundamentalism” (p.291). She deftly notes that Bosnian Muslims were almost wholly secular – facetiously preferring to answer the call to prayer by raising a glass of rakija (the powerful fruit brandy that has thrown many an insouciant drinker for a loop). Yet, despite its focus on the individual, the criminal law also essentializes. Prosecutors emphasized group difference to argue genocide in Bosnia. Targeted groups and protected groups based on four immutable criteria – race, nationality, ethnicity, or religion – are, after all, integral to the lexicon of genocide convictions. Prosecutors emphasized the religiosity of Bosnian Muslims to augment the culpability of perpetrators, for example in abhorrent rape cases prosecuted as crimes against humanity. The law, too, typifies when it prosecutes. In some instances, victim typification may be central to conviction and, even, enhanced punishment.
In any event, Milosevic’s defense strategy failed. His trial was not all about Serbia. Yet, the foreclosure of the collective dimension ensconced Milosevic’s own conceit and centered his own ego. Armatta falls into the same web in which Milosevic had ensnared the ICTY. Fundamentally, her book about the trial – from front cover imagery through to text – is much more about him than it is about the tens of thousands of victims. She favors subject over composition. Hence, the trial story becomes his story. Some exception arise, such as Armatta’s beautiful treatment of the pugnacity of witness K-31 in cross-examination by Milosevic. Still, the book remains about getting Milosevic and the herculean efforts [*180] international lawyers undertook to get him. It’s about his obstreperousness, his health, his hectoring, his unappealing witnesses, his intimidation, his petulance, and his asininity. Such, perhaps inexorably, is the narrative of the criminal law.
REFERENCES:
Bieber, Florian. 2011. “The Show and the Trial: The Political Death of Milošević,” in Timothy Waters, ed. THE MILOŠEVIĆ TRIAL: AN AUTOPSY (Oxford University Press).
Simons, Marlise. 2011. “Former Liberian President Boycotts War Crimes Trial for Second Day,” NEW YORK TIMES (February 9).
© Copyright 2011 by the author, Mark A. Drumbl.
