RECOM Interview: Christian Axboe Nielsen
By: Jelena Grujić Zindović
In your work, you have dealt with the relationship between court-established facts and research. Has this relationship improved over the past few years? It would seem that few research papers use facts presented before the Hague Tribunal.
I think that it would be wrong to say that a fact established in court cannot also be a scientific fact. If we have a case involving the assassination of some politician, the court has to establish who killed him – so that, then, is a relevant fact. I see nothing contentious there.
But, of course, the court could be wrong, just as a historian could. The fact that a court has reached a certain decision does not mean that we cannot discuss the significance of the verdict, or some of its possible flaws, and so on. Every criminal court has to base its proceedings, first and foremost, on indictments raised against specific individuals. An indictment itself is thus a product of some form of selection of facts. Just look at the wars in the former Yugoslavia – there were 161 individuals charged by the Tribunal. That was only a small selection of all the possible indictees.
There is a great book by Lawrence Douglas which I think best describes this, particularly in relation to trials such as those against Eichmann or certain Holocaust-deniers. It’s about all of us having to accept that the court’s primary function is not to write history.
But where does the distrust of using facts established during court proceedings, prevalent in some scientific circles, actually come from?
Look, first we have something that is problematic as a principle: even today, a great many people tend, in some ways at least, to protect their own scientific fields jealously. I am a historian, and when I have testified before a court, it has often happened to me that the lawyers just couldn’t accept that, as a historian, I was capable of analyzing some law on internal affairs. “You are not a lawyer”, they would say, “and you can’t talk to us about the Law on Internal Affairs”. First of all, if that were truly the case, if non-lawyers truly had nothing to say about the law, then we wouldn’t even be able to comply with certain laws. Secondly, every historian or social anthropologist who deals with issues related to state institutions, also has to engage, to some extent, in the examination of their legal foundation. I insist on interdisciplinarity very strongly; but, at the same time, as a historian, I can accept, without much difficulty, that a judge who deals with some complicated war crimes case will also have to deal with history in one way or another. The fact is that crimes, such as crimes against humanity, war crimes and genocide, do not just happen out of nowhere, nor do they start at 3 PM, only to end five minutes later – rather, there is a whole development of events and their context to consider, which, for example, would show why it was Croats committed crimes against Serbs, and why Serbs perpetrated crimes against Bosniaks. You have to know the historical context to be able even to understand what it was all about, and what led to the crimes. So, in my view, court judgments, such as those issued by the Tribunal, represent documents of great importance that will actually assist contemporary and future historians in providing an even more detailed description of the events in question.
What is it like, this history of the breakup of Yugoslavia written by the Hague? In your opinion, does it provide a good enough sketch?
I think that this record, let’s call it The Hague’s history of the breakup of Yugoslavia and the wars in the former Yugoslavia, provides an adequate draft for use in future monographs. I think that the quantity of accurate facts and explanations found in these verdicts far exceeds the number of errors. However, again, one does find some weird gaps there. For example, you have this incredibly detailed description of the facts dealing with the area of Bosanska Krajina, or maybe even with the whole area around Sarajevo. But then you have some areas of Central Bosnia, Eastern Herzegovina and Northeastern Bosnia – Semberija, Majevica, etc. – where there are huge factual gaps. Everything that happened on February 17th, March 21st or July 5th is known, but there are gaps in between. That, of course, has to do with the prosecutors having had, just like anywhere else, to choose a focus, particularly with respect to those areas where a large number of crimes had taken place.
The most significant scientific legacy of the Hague Tribunal is, in my opinion, the huge amount of documentation this court left behind. We are talking about a single, combined archive. It is an incredible source of information, to be used in a great deal of scientific research in the future. That is why it is extremely important that these archives be made available to as many people as possible. But, of course, when you have just 161 convictions, you really can’t say that you’ve dealt with every area and each crime. However, there isn’t a single book on Bosanska Krajina that describes the crimes that took place there accurately and in detail, at least not to the extent that the Hague verdicts do. That, too, is relevant.
In addition, even today, there are very few research papers that deal with those crimes in B&H which were unrelated to Srebrenica. There are a huge number of books on the breakup of Yugoslavia, but few of them actually delve at a microscopic level into the mechanisms by which the crimes were perpetrated. If you want to find out what the war looked like in the area of Prnjavor, or Doboj, the only available secondary source are the Tribunal’s verdicts.
Are there enough established facts for the citizens of each state to face and accept them from the “inside”, and for everything that happened to become part of the official narratives at the level of the whole society, or in, say, school textbooks, etc.?
Both the media and “ordinary” people, and some political leaders in particular, often see the trials as investigations based solely on the names and ethnicities of the victims and the accused. As far as I am concerned, the accused persons are X and Y, while the victims are person A and person B – and all of them are, first and foremost, human beings. I could almost tell you in advance how the media or the leaders will comment on a given case. There exists a strong paradox in the former Yugoslavia, that the political and media elites – and one can also see this in their education and school textbooks – are virtually obsessed with their own nation’s role as the victim, without showing any interest in the individual victim as a human being, irrespective of his or her ethnicity, be it Serbian, Albanian, Croatian, Bosniak, etc.
There is also a non-critical acceptance of ethnic identities, both by the victims and the perpetrators. All the victims killed in a single given incident – all of them get mentioned in school textbooks, political speeches, the media, on plaques and monuments, where they are reduced to being just Croats or Albanians or Serbs or Bosniaks, as if that was their sole identity, their being members of some nation, both in life and in death.
That is not a new problem, and it isn’t limited to the Balkans. You have a similar phenomenon among the victims of the Holocaust, where they are all identified as Jews, even those who maintained a very informal relationship with their Jewish identity before the rise of Nazism. I am talking about those persons who never went to synagogue, had no affinity with Zionism, and were completely integrated in, some Danish, German or French society. After the end of WWII, they became in death, for political reasons mostly, part of one simplified picture, and were regarded solely as Jews. They were born as Jews, they were killed as Jews, and now, they will forever remain solely Jews on the plaque of some monument.
Look at the old Yugoslavia, where you had all shades of the Bosniak, Croatian and Serbian identities – and I’m not talking just about mixed marriages. If a person was killed in Vukovar just for being a Croat, it is, quite simply, a problem for me, both as a person and a historian, to reduce his or her entire life, which ended tragically, to his or her Croatian identity. That way, we actually accept the reductionist view of the perpetrators. And it all becomes even worse when, in death, the victim gets turned into a fanatical supporter of, say, Croatia’s independence – which he or she might or might not have been.
I find this obsession with ethnicity deeply problematic when it comes to the victims. This quite clearly has to do with the fact that genocide, as a crime, actually affirms the ethnicity or faith of its victims. One can see this in the Convention against Genocide: in order for a person to be accused of committing genocide, he has to kill members of a specific legally protected group, using, for example, their ethnic identity as justification, because he wants to destroy that group as such. But there’s an indirect consequence to such an understanding of a crime, resulting in greater focus being placed on the ethnicity of the victims and the perpetrators.
I also see the competition over the extent of each group’s suffering as deeply problematic, particularly with respect to genocide. This also paints the false picture that the victims of genocide are more important than the victims of some other horrific crimes. This is actually a very interesting phenomenon. This competition among the victims does not always take place between, say, the Serbs and the Croats, or the Albanians and the Serbs, but within ethnicities – you have an example of this among the Bosniaks, where some sort of competition is taking place between the victims from Srebrenica (because the crime that took place there has been characterized as genocide by the Hague Tribunal) and, for example, the victims’ associations that represent the interests of the victims from Krajina, Herzegovina or Sarajevo.
How do you see the move to establish a Special Court for Kosovo? Do you have any expectations at all, taking into account past experiences with the prosecution of crimes perpetrated in Kosovo?
For a number of reasons, the Hague Tribunal hasn’t been able to achieve the same, or at least similar results, in terms of prosecuting the crimes perpetrated in Kosovo, as compared to some other areas, Bosnia and Herzegovina in particular. And that’s why I think that there needs to be an ad hoc court for Kosovo, and I believe that this is a good thing, and important in the sense that each ethnic group or people in the former Yugoslavia has to be able to accept the fact that the prosecution of crimes perpetrated by members of their own nation does not at the same time imply any sort of comment about the victims from their own ethnic group. To prosecute an Albanian for crimes against Serbs or Roma is not an attempt to relativize the crimes perpetrated against Albanians in Kosovo. That’s something that is quite clear to me, but obviously incomprehensible for many others. There’s still this prevalent belief among Kosovo Albanians that they can only be the victims of this war. I think that it is very important for Kosovo to become a state with laws in place, and legal protection for all who live there; but I also think that the rule of law cannot be achieved if it does not apply to everyone and everything that has to do with the war. I see that some politicians in Kosovo have begun to understand this and support the establishment of the Special Court, despite strong opposition, and recognize the need to cooperate with such a court.
How would you evaluate the reconciliation process in this region of ours, and how would you define reconciliation in the first place?
In terms of transitional justice, I strongly believe that the crimes have to be prosecuted, but, at the same time, that this would represent just the first step in the right direction. It would be too difficult to reach any kind of reconciliation without prosecuting, at the very least, the most heinous crimes. On the other hand, I cannot see how, by itself, the prosecution of crimes means that we are all going to start loving each other from now on. For me, reconciliation means returning to some normal social state, in which we are able to critically examine the past, the present and the future. There’s a terminological distinction used in the social sciences that I like – between a negative peace and a positive peace. You have a negative peace when people no longer shoot at each other, but have no desire to cooperate, trade or form friendships; or when they only rarely travel from one of the former republics to another. In some of these former republics, there is actually ethnic segregation in schools. As I see it, all of this is a big obstacle to reconciliation. For me, reconciliation means focusing on individual criminal responsibility for crimes, and understanding ethical responsibility according to Karl Jaspers’s model.
In 1945 and 1946, when Karl Jaspers, a German, wrote his famous little book, he said: If I am a German, and haven’t committed any crimes, in order to distance myself from all the crimes and make a step towards reconciliation, I have to support the prosecution of specific criminal acts. So, if I work for Kosovo’s Justice Ministry or the Serbian Army, my task is to make possible or facilitate the investigation of these crimes – not to interfere, but to cooperate fully, and all of that… Further, says Jaspers, even if I am a German who’s never committed any crimes, I bear an ethical responsibility and have to understand that some crimes were perpetrated in my name, and that imposes a certain obligation on me. That, too, is part of this demanding work on reconciliation. And I would like now to repeat some excellent questions raised by my colleague Stef Jansen: We can all agree that reconciliation is an excellent idea, but what exactly does it mean? Why do we strive for reconciliation, what specifically do we expect to gain from it, and are we neglecting other important things by talking only about reconciliation?
For myself, reconciliation also implies the understanding that, if we want to prevent future crimes, we have to be critical, in the sense that we understand that victims of past crimes can become perpetrators over time, and vice-versa. So, there is no national concept here that describes one or another people as particularly inclined towards crime. Just as I believe that no nation, be it Danish, Albanian or Serbian, is so special that its members can only be victims, but not perpetrators. I truly believe that, in 40 years’ time, we will still have to remind ourselves of the most important lessons from the former Yugoslavia of the nineties, just as today we have to remember all the lessons from WWII.