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The Tribunal on Trial: Europe and the Arbitration of War Crimes

The following paper was presented at the recent Telos in Europe conference on “The Idea of Europe,” held in L’Aquila, Italy, on September 5–8, 2014. For anyone interested in participating in the upcoming 2015 Telos Conference in New York, abstracts will be accepted through October 20. Complete details and the full call for papers are posted at the Telos-Paul Piccone Institute website.

As the first wars to be waged on European soil since the Second World War, the Balkan crises constituted a defining moment for post-Cold War Europe, and particularly for the newly united nation at its center: Germany. The political and humanitarian crises that ravaged the former Yugoslavia between 1991 and 1999 had a significant impact on migration patterns to Germany; the BRD took in 48% of all refugees from the war-torn region, vastly more than any other European country. This was not just a test of whether or not Germany would welcome migrants, a large portion of whom were Muslims. It was also a test of how Germany, in light of its own genocidal past, would react to the Serbian policy of “ethnic cleansing” and how it would treat its position in NATO, a membership that would cause the first mobilization of German troops since World War II. When we consider these various factors and dilemmas, Germany’s role in the conflict is certainly fraught, especially when we recall that the German government under Helmut Kohl and Hans-Dietrich Genscher exacerbated the Yugoslav crisis through its hasty recognition of Slovenia and then of its World War II ally Croatia as independent states. These decisions undermined the legitimacy of the Yugoslavian multiethnic state and set off a chain reaction that led first to the evacuation of Serbs from the new Croatian nation and eventually to the ethnic cleansing of Bosnian Muslims by Serbs.[1]

The novel I analyze in this paper focuses, at least on the surface, not so much on the conflicts themselves as on the aftermath of the conflicts and in particular on the international structure put in place to prosecute war crimes, the International Criminal Tribunal for the Former Yugoslavia (ICTY), a legal body created by the United Nations in 1993. Justice, according to Antonio Cassese, the former president of the tribunal, “is an indispensible ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations. . . . It breaks the cycle of violence, hatred, and extra-judicial retribution. Thus justice and peace go hand in hand.”[2] A nation, we can conclude from Cassese’s statements, cannot be perceived as stable or “normal” until justice is served. But as the most recent cases to come before the ICTY and the concomitant protests in Croatia and the Republic of Srpska in the spring and summer of 2012 have shown, the search for justice does not guarantee peace. Indeed, perhaps more often than not, it meets with violent resistance. The Croatian-born author Nicol Ljubić raises provocative questions of justice, retribution, and national responsibility in his most recent novel, Meeresstille (2010).

Meeresstille interweaves the journalistic report of a war crimes trial in The Hague with the ill-fated love story of Robert, a Croatian-German who bears some similarities to the author himself, and Ana, a young Serbian woman studying in Berlin. The two narratives—that of the courtroom drama and that of the romance—are connected to one another by Ana’s father, Zlatko Šimić, who is the defendant in the war crimes trial that frames and punctuates the entire novel. It is Ana’s secret about her wartime experiences in former Yugoslavia and about her father’s role in those experiences that ultimately tears Robert and Ana apart. In my larger project, I’m interested in how recent writers and filmmakers employ certain narrative conventions—particularly those of the romance and of the courtroom drama—to depict a particularly German confrontation with the crises in the Balkans. I am therefore also interested in what we as readers expect from such narratives. Do we expect a happy ending, particularly in the case of a romance, or do we expect betrayal and therefore delayed satisfaction (or no satisfaction at all)? Do we expect justice to be served by the judge or jury in a courtroom drama, or do we expect extra-judicial factors to dictate the outcomes of the trial? Is it really justice we desire, and if so, is justice usually equated with revenge rather than peace?

Like the Goethe poem that carries the same title as Ljubić’s novel, there is a tension in this text between what’s happening on the surface and what’s going on underneath—a tension between what the novel attempts to criticize and what it actually winds up doing. It appears, on the surface, to question the raison d’être of the ICTY. As Ana plainly and provocatively states, “dieses Tribunal ist voreingenommen, es geht da nicht um Gerechtigkeit” (“this tribunal is biased, it’s not about justice”) (Ljubić 106).[3] Šimić’s trial, as the frame for the novel, becomes a trial of the court itself, testing whether the court exists to determine the guilt of individuals or to put entire nations on trial. The book’s prologue is the prosecutor’s stirring opening statement, which serves to educate readers—who are made to feel as though they’re sitting on the jury—on the murder and expulsion of Bosnian Muslims from Višegrad in 1992. Šimić is not accused of committing actual physical violence, but he is charged with deliberately misleading a family of Muslims about the possibility of escape from Višegrad and hence of contributing to their deaths at the hands of a Serbian paramilitary group. Šimić’s actions, the prosecutor explains, must be viewed against this “background” of ethnic cleansing and therefore seen as part of an organized conspiracy to persecute Bosnian Muslims. What Ljubić’s novel goes on to do is to call the prosecutor’s tactics into question by drawing a more complex portrait of Šimić and his family. In short, the book attempts to individualize and personalize Šimić and his daughter Ana and thereby to separate them from crimes committed in the name of Serbian nationalism (something the Austrian writer Peter Handke calls for in his controversial writings on the conflict and the tribunal as well). Šimić’s acquittal at the close of the book seems to prove that the court has done its job. It has investigated the individual guilt or innocence of the defendant rather than the systematic persecution of Bosnian Muslims.

Meeresstille, therefore, does not allow the court to become the stage for a show trial, in which the reputation of what political theorists Daniel Levy and Natan Sznaider have called the “human rights regime” of post-Holocaust (western) Europe is more at stake than individual justice itself.[4] In other words, is it more important for legal bodies like the ICTY to send a message that human rights breaches will not be tolerated than it is for them to see that each individual case is tried on its merits? Perhaps even more than works by Handke such as Rund um das Große Tribunal from 2003, the legacy of Hannah Arendt’s 1963 work Eichmann in Jerusalem: A Report on the Banality of Evil looms, I would argue, in the background of Ljubić’s book, for Arendt’s study posed critical questions about Eichmann’s role as a stand-in for all Nazi crimes against the Jews and about the legality of Israel’s right to put a citizen of another sovereign nation on trial. Arendt did not doubt Eichmann’s guilt nor did she doubt that he deserved a death sentence, but she did ask her readers to critically contemplate what is “right” versus what is “just.” Consider for a moment some of the final lines from Arendt’s postscript: “It is quite conceivable that certain political responsibilities among nations might some day be adjudicated in an international court; what is inconceivable is that such a court would be a criminal tribunal which pronounces on the guilt or innocence of individuals. And the question of individual guilt or innocence, the act of meeting out justice to both the defendant and the victim, are the only things at stake in a criminal court.”[5] Ljubić, I think, is trying to do something strikingly similar, but he is not quite as adept at it as Arendt is.

Zlatko Šimić is, most likely, guilty. Or at least we as readers are led to believe that he is capable of the crimes of which he is accused. One of the most disturbing aspects of the book, however, is that these crimes are shown to be motivated not by ethnic hatred but by an impulse for personal revenge. Portrayed as an aggrieved father out to avenge the rape of his daughter, Šimić becomes both a victim and a perpetrator in one, and his crimes become understandable, excusable . . . even justified. As much as the book seems, on the surface, to advocate for legal justice that is untainted by sentiment and for individual responsibility over the collective guilt of a nation, it compromises both of these positions by making the following moves.

First, in its employment of a failed cross-national romance between a Croatian-German man and a Serbian woman, the novel highlights unhealable tensions between Croatians and Serbs and hence redraws national lines. Second, in its rather heavy-handed attempts to complicate the wholesale depiction of Serbia as a nation of perpetrators, the book shifts the reader’s focus to the nation in Europe most often associated—at least since the twentieth century—with chauvinistic nationalism and ethnically motivated genocide: Germany. Parallels to Germany after 1945 are clearly drawn; consider Ana’s lamentation regarding Serbia’s national shame: “It’s been living for nearly 20 years with a guilt complex, isolated from the world” (111). It is not a stretch to say that this same statement could also have been made about Germany in 1965. It is through the figure of Ana that parallels between 1990s Serbia and Nazi Germany are drawn again and again, most often to absolve the younger generation of the guilt of their fathers. Ana represents, for most of the book, a forward-looking perspective and the hope for Serbian integration into European society. But she also attempts to hide a past haunted by the violence of rape and memories of fleeing her bombed-out hometown, experiences that makes her into a victim and, in light of the book’s clear references to Germany, evokes the mass rapes of German women by the conquering Soviet army and the bombing of German cities by the Allies. The question is: to what end does Ljubić create these parallels between his Serbian characters and German history?

Because this is a novel written in German and marketed to a German-speaking readership, Meeresstille is clearly an attempt to complicate the categories of victim and perpetrator and to depict Germany—both historically and currently—as a nation that contains both. Having the young historian Robert as our guide through the text, we are reminded of past atrocities and of the value of keeping the knowledge of those atrocities alive. Germany is not absolved of historical responsibility, nor is it portrayed as a nation that is free of prejudice. In fact, it is explicitly portrayed as both a land of asylum for Bosnian refugees (through the character of Aisha, whom Robert meets at the trial) and a land that still struggles with racially motivated violence and intolerance (as the confrontation between Robert and a group of skinheads in Brandenburg clearly illustrates). This balanced construction of a nation, however, is not what bothers me about this novel.

What does strike me as disconcerting is the tendency of Ljubić’s novel, through its rather pat equation of Germans and Serbs and through its narrative focus on Ana’s rape and her father’s subsequent revenge against her assailants, to generalize violence (either acted out by or enacted upon individuals) as a natural and unpreventable part of the human—or perhaps especially of the European—experience. Zlatko Šimić, we are told repeatedly in the text, is a man of culture, a respected Shakespeare scholar. And yet, he is implicated in the deaths of an entire Muslim family. The confrontation with Šimić’s character recalls the post-World War II intellectual debates about how Germany, as a nation of great writers and philosophers—in other words, as a Kulturnation—could possibly have waged a genocidal war. However, by creating a deeply personal motive for Šimić’s crimes—the protection of his daughter’s honor—and by using multiple references to Shakespearean tragedies to make Šimić into a brutal yet heroic character, the book lapses into a narrative of justifiable vengeance and (by default) glorified violence. Granted, narrative gestures such as these do cause readers to contemplate the relationship, rather than the opposition, of violence and culture not just within German history but in European history more broadly. If, however, as the novel leads us to believe, every culture or every nation has its share of victims and perpetrators, and if violence is simply a part of the human story, where is the space for intervention and for the prevention of violence? Where is the imperative to hold individuals and nations responsible for their actions when those actions constitute clear breaches of human rights? Where, in short, is the room for justice and who has—or what national or international bodies have—the right to sit in judgment?


1. Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (New York: Penguin, 1996), 25, 27. Statistics on migration to Germany from the former Yugoslavia come from the UNHCR, March 1995.

2. This quote by Cassese is featured prominently on the official website for the ICTY, (accessed July 14, 2012).

3. Nicol Ljubić, Meeresstille (Hamburg: Hoffmann & Campe, 2010). All subsequent quotes from the novel will appear will be cited within the text, and all translations from the German are my own.

4. Daniel Levy and Natan Sznaider, The Holocaust and Memory in the Global Age, trans. Assenka Oksiloff (Philadelphia: Temple University Press, 2006), 19.

5. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1963; reprint New York: Penguin, 2006), 298.

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