But prosecution and the willingness to prosecute do not tell not the whole story. Both the people who advocated legal action and the people who resisted it might be described as acting from the same motivation: a belief that regardless of what person or people might be charged, the result of any trial would reflect somehow on other members of the social collective, and have repercussions on senses of self and feelings of identity. At stake then is no longer just the guilt of war criminals, but the feelings of responsibility held by the people around them. By imposing the question of guilt, the “freezer truck case” raised, for many people for the first time, the question of responsibility.
The Difference Between Guilt and Responsibility
One of the frequently stated goals of confronting the recent past is to assure that the events that marked it will not be repeated. This effort requires asking questions that go deeper than the investigations required for criminal prosecution. The principal questions deal with causes: how was an environment maintained that made the commission of crimes possible? Generating answers to these questions requires research into social and political history, but also demands uncomfortable self-interrogation. Was the ideological justification that legitimated criminal activity widely shared? To what extent did people acquiesce to the regime that was responsible for these crimes? How widespread was knowledge about crimes and their perpetrators? Did citizens have the capacity to change the regime or its policy?
The questions engage acts and positions for which people might feel responsible but not guilty—they are not criminal acts. These generally relate less to public or widely consequential interventions by people or institutions, and more to questions individuals might pose to themselves about how they experienced the period of dictatorship and war, and about whether their approach to this experience allowed them to maintain an understanding of themselves as uncompromised and morally responsible.
Approaching responsibility in these terms involves constructing an understanding of the recent past. Arguing why Milošević should be tried domestically, Prime Minister Djindjić remarked, “We have to reconstruct our own past through this legal process, because not only is Milošević a part of our past, but so are we, and because Milošević would not have become what he is without us.”57 Understanding the recent past implies not only rendering causes and conditions narratively, but also interrogating the role of social groups and individuals in the experience of traumatic events. Politicians have borrowed the word “catharsis” from the psychological literature to describe this social process.58
Almost all domestic and international discourse has revolved around questions of guilt and how or whether guilty people will be punished. It is also necessary to broaden the discussion beyond this certainly moral but mostly practical theme. Guilt needs to be addressed but so does responsibility. The remainder of this chapter offers brief definitions and discussions of these two concepts, various dimensions of which are explored in detail in the rest of the book.
Guilt: A Legal Category
Legal trials are concerned with the guilt of perpetrators of crimes, seeking to document and punish it. In these institutional settings guilt is a legal concept,59 whereby a person can be defined as guilty if he or she can be shown have done something illegal.60 The definition is accomplished on the basis of evidence tying the person to the act, and findings of guilt are factual findings; they have nothing to do with how the person might feel about having committed the act. The Oxford Companion to Law offers the following definition: “Guilt. The concept of having committed some failure of duty, usually a crime or offence, and consequently being liable to some penalty. A person accused may admit guilt, or be found guilty on the evidence. In the case of common law crimes guilt normally coincides with having committed moral fault, but in the case of some statutory offences guilt may arise by merely having done something or allowed it to happen without moral fault at all.”61 The scope of guilt is conceptually limited. Only a person who has committed a violation can be regarded as being guilty.62 This also extends to considering potential guilt: only individuals can be tried and eventually convicted. The idea that a society or a political collective might be guilty, appears in political rhetoric but makes no sense as a legal idea. The political notion of collective guilt also has several obvious theoretical shortcomings. Probably not the least of these is the inclination to impose a false collectivity that erases social and political differences. At a minimum this approach is offensive to diverse people within collectives, while at worst it can constitute a sort of self-fulfilling prophecy that encourages people to identify with criminals because they share an ethnic background.
Responsibility: Individual, Collective, Political
If problems posed by guilt are legal and technical, problems posed by responsibility are social and moral. Conceptions of collective guilt function, if they function at all, as invitations to reflection on responsibility. Here it is important to maintain the conceptual distinction, rather than treating responsibility, as popular rhetoric often does, as a sort of “guilt lite.”
Karl Jaspers offers some of the most useful guidance on this question, and most of the discussion here relies on his discussion of guilt and responsibility. His post-World War II reflection The Question of Guilt begins by confronting the widespread sense that Germany as a whole shared guilt for the crimes of the Nazi regime, which were only beginning to be widely publicized when he wrote the book.63 Jaspers distinguished between the stigma placed on Germany from outside and the task that confronted it from inside: “the fact that the victors declare us to be guilty is a political fact with the widest possible consequences for our lives, but it does not help us in the most important task, with our internal transformation.”64 Jaspers echoes the distinction noted by H. D. Lewis, who in his entry on “Guilt” in The Encyclopedia of Philosophy notes, “We may in any case be morally guilty and legally innocent—and vice versa.”65 Here I draw on that insight to separate legal culpability from moral responsibility, so that both can be observed without confusing the two.
Jaspers distinguishes legal guilt from three other forms:
1. Political guilt. The concept of political responsibility represents a factual state, in which all citizens of a state collectively bear the consequences of political decisions made by the state. This relationship of cause and effect operates regardless of whether these citizens supported the political decisions made by the state: my views on tax policy may not be the same as those of the majority of legislators, but this does not change my tax obligations. The concept of political responsibility also postulates a (varying) degree of moral participation. Jaspers asks rhetorically: “Do we Germans have to be held responsible for offenses which other Germans committed against us or which we managed somehow to miraculously escape? Yes—to the extent that we permitted that sort of regime to exist in our country. No—to the extent that many of us with the deepest conviction opposed that evil and did nothing which would cause us to recognize moral complicity with it. Demonstrating somebody’s responsibility does not mean demonstrating that person’s moral guilt.” Political responsibility applies to all people whose “lives are carried out within the framework of the state.” Jaspers recognizes that some “completely apolitical” people might be excluded from this category, but construes the privilege of being apolitical to apply only to narrowly defined groups whose existence takes place outside the political sphere, such as monks.66
2. Moral guilt. This category refines the legal concept of command responsibility, which dictates that a greater degree of guilt applies to an officer or politician who issues an illegal order than to a soldier or official who complies. By contrast, Jaspers argues: “I carry moral responsibility for all of my actions as an individual, as for all of my other actions, including the carrying out of political and military orders. The simple principle that ‘an order is an order’ never applies. A crime is still a crime even when it is committed on orders.” Jaspers casts moral responsibility not as a legal issue but as an issue of the conscience of the individual, specifying that “everybody has to decide how to judge himself, but since communication exists, we can discuss these things among ourselves and help each other to