Plausible deniability: The challenges in prosecuting paramilitary violence in the former Yugoslavia

With the closure of the ICTY and local judiciaries continuing prosecuting individuals for war crimes in the former Yugoslavia in the 1990s, it is time to reflect on challenges in prosecuting paramilitary violence. Currently it appears much easier to prosecute cases of lower-level perpetrators for murder and rape than it is cases of political and military leaders accused of establishing, training, financing and directing units in the field and encouraging or enabling criminal behaviour. That is in particular the case for paramilitaries which have been consistently described as a key tool for seizing control of territory. Changing the demographics through brutal attacks on civilians was widespread and resulted in murders, rape, torture and plunder.

So far, courts were largely reluctant to convict leaders that are physically far from the crime scene for paramilitary violence. This chapter aims to identify and analyse the reasons for that in cases where available evidence strongly suggest that those leaders directed the violence or have done nothing to stop it. Challenges to prosecuting for paramilitary violence are numerous and will be unpacked in this chapter, looking at the lack of documentary evidence, a lack of clarity about who is responsible for commanding and controlling paramilitary units in the field, challenges of witness protection and witness intimidation.

The insights into difficulties of prosecuting for paramilitary violence will help bring us closer to understanding why paramilitaries are used in war. For political leaders, paramilitaries are useful for seizing territory, while maintaining an image of detachment from formal state institutions and leadership. The plausible deniability hypotheses suggest that they are used precisely because they form a shield for political and military leaders from criminal prosecution. As criminal prosecutions remain one of the key tools for post-conflict transitions, it is important to understand the obstacles in prosecuting cases of paramilitary violence. The chapter will draw on experiences in trials at the ICTY (e.g. Milosevic, Stanisic and Simatovic, Seselj), and local jurisdictions (e.g. Scorpions trials in Belgrade, Captain Dragan trial in Split, Batko trial in Sarajevo).