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Adjudicating Sovereignty: From State Weakness to Improvisation

Alex Jeffrey ([email protected]) The Department of Geography, The

University of Cambridge

A draft paper prepared for The Strength of Weak States in Eurasia, not

for citation or circulation.

Co-convenors: John Heathershaw (Exeter) and Ed Schatz (Toronto)

Abstract

This chapter explores the utility of ideas of improvisation to

understandings of Eurasian state-building, focusing in particular on

forms of international intervention in Bosnia and Herzegovina (hereafter

BiH) since 1995. Using improvisation as a means of grasping the social

character of political and cultural practice has a long scholarly lineage,

from structural anthropology in the 1960s through to its more recent

reworking in post-structural political theory. This paper will build on this

work to illustrate the symbolic and material elements to the metaphor of

improvisation, it is a term that simultaneously evokes performance and

resourcefulness. In the first frame, improvisation highlights the situated

and embodied ways in which international agencies have attempted to

perform a coherent and stable Bosnian state: from re-naming streets to

inventing traditions; from implementing new legal frameworks to

reorganising state services. In the second frame, improvisation highlights

the enrolment of social, cultural and economic resources in conveying

and resisting nascent state processes. This chapter explores this

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framework through one expression of the consolidation of the Bosnian

state: the establishment over the past decade of the Court of Bosnia and

Herzegovina. Such an approach focuses our attention on the situated and

partial nature of adjudications of state weakness, highlighting that they

are iterations that emerge from distinct political perspectives rather than

reflecting disembodied and essential value judgements. The chapter

concludes by arguing that assessments of the adjudication of sovereignty

should not focus on the content of such pronouncements but rather their

political effects.

Introduction

I would say to the critics of international intervention that, yes, we

do have our own interests: an interest in a stable Bosnia and

Herzegovina, a stable Balkans which must be given every

encouragement to join the European family of states. We must hold

out the highest expectations and hopes for our neighbours for

September 11 demonstrates only too well what happens if we turn

our backs on weak states. […] [T]here are four inter-agency task

forces dealing with the three core tasks - economic reform,

institution building and [refugee] return – as well as rule of law,

which is the precondition for the former three to succeed. (Wolfgang

Petritsch, 9th May, in Office of the High Representative, 2002a)

Addressing the assembled representatives of the Organisation for

Security and Cooperation in Europe (OSCE), then High Representative in

Bosnia and Herzegovina (BiH) Wolfgang Petritsch outlines the dilemma

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faced by intervening agencies. While the High Representative had been

granted, since 1997, the executive and legislative powers to run the BiH

state in line with 1995’s General Framework Agreement for Peace

(GFAP), there was also a lingering sense that suspending democratic

processes also weakened fledgling civil society groups and fomented

resistance to perceived neo-imperialist practices. The 2014 public

protests against the structure and policies of the Dayton BiH state seem

to illustrate a long-held fear of the failure to cultivate democratic

participation following the end of the 1992-95 conflict.

But there are two further observations that can be derived from

Petritsch’s words. The first is the centrality of adjudications of state

strength to the process of intervention. The irony of such adjudications

has not been lost within subsequent scholarship examining the military

and diplomatic practices of the US-led ‘War on Terror’, where policies of

strengthening state sovereignty were delivered through spectacular

military incursions (see Elden, 2009; Jeffrey, 2009). The second is the

centrality of law to the perceived strengthening of the BiH state. In this

optic, law is not simply a means of conflict resolution but a force that can

constitute a unified territory and foster a sense of shared citizenship. The

GFAP created a highly decentralised legal system, where jurisdiction was

largely based on the two sub-state entities (the Federation of Bosnia and

Herzegovina and the Republika Srpska or RS) and a special district in

Brčko, and even within these territorialities legal competences were

3

largely delegated to cantonal courts (in the Federation) and municipal

courts (in the RS).

The central strategy to confront a decentralised legal system and weak

state was to create a Court of Bosnia and Herzegovina (CBiH) with

jurisdiction over the entirety of BiH. This was both a material and

immaterial process, involving the passing of a series of new criminal

prosecution codes; the training of a domestic judiciary; the establishment

of a state prosecution service, and the construction of a new court

building in the BiH capital, Sarajevo. Rather than reifying teleological

narrative charting a journey from state weakness to strength, this

chapter explores how this process of establishing the CBiH has been

enforced and resisted in the ten years of its operation. This form of

analysis requires a conceptualisation of the state as a set of improvised

practices, where plural understandings of both what constitutes

sovereignty and the nature of specifically BiH sovereignty is constantly

contested and negotiated in practice. Using the lens of improvisation

illuminates the ways in which adjudications of weakness and strength are

contested in everyday life, through such apparently mundane practices

such as the use of specifc architectural devices, the symbolism of the

urban landscape and the claiming of public space. Elsewhere I have

explored the theoretical and conceptual basis of this understanding of

state building (see Jeffrey, 2012) and while I will not repeat this material

here, it is important to draw out a number of key facets of this conceptual

and methodological perspective.

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Understanding the state as an improvisation works at the confluence of a

series of established binaries in the social science. It appears to integrate

the ephemeral (the fleeting moment of practice) with the durable (the

enduring image of the state as the backdrop to political life). In a sense

this reflects the dual use of the term improvisation, since it is a term that

is used to denote acting on the spur of the moment (for example how the

term is understood in some strands of improvised jazz, see Berliner,

1994), and making do with available resources (for example in

anthropological work drawing on Levi Strauss’s (1972) concept of

bricolage). Improvisation, then, denotes both a sense of theatricality and

a notion of making do, it points our attention then at the tension between

performance and resourcefulness. In previous work I have traced this

interplay between the obdurate materiality of political performances and

the ability to convey authority across space (see Jeffrey, 2012).

When orientated towards the state, improvisation becomes a term that

signifies an array of actions that seek to bolster a particular account of

sovereign power. Aligned with Jacques Rancière’s (2013) notion of

aesthetic acts, these actions constitute any “event, speech, or encounter

that makes it possible to reset social perceptions of what counts and

what matters” (Clarkson, 2014). The element of resourcefulness

illuminates the uneven power positions of actors making claims to

statehood. The ability of the international agents to declare what

constitutes a legitimate state form is a product of their accrued legal,

material and political resources, the origins of which can be traced of a

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lengthy temporal and geographical reaches (see, for example, Gregory,

2004). But the superior position of intervening agencies to constitute the

state also gesture at the significance of external recognition to the

establishment of state sovereignty: state power only ever exists in a

relational form, established through insertion into the international state

system.

Following Weber’s (19858: 78) definition of the state as a “human

community that (successfully) claims the monopoly of legitimate use of

physical force within a given territory,” we can identify performances of

legitimacy as one of the central spars of state improvisation. As Bratsis

(2006: 14) has pointed out “if force must be legitimate in order for the

state to exist, then the cognitive and affectual processes that create this

legitimacy must be of primary interest”. This insight shifts attention away

from thinking about the specific material attributes of the state and

towards the subjective processes through which the state is secured as a

stable truth. Abrams’s (1988) account is an early attempt to advance this

approach, as he advocates a move away from isolating the institutional

reality of the state to think of the state instead as an ‘idea’. Scholarly

attention has consequently shifted away from a quest to trace the

functions of the state, and towards an interest in the effects of the state

idea. For Timothy Mitchell (2006) such effects are diffuse and difficult to

grasp, but it is precisely this imprecision that has been the source of its

political strength as an ideological construct. So instead of dismissing the

state and seeking a coherent and tangible alternative category (such as

6

government or political party) Mitchell suggests that it becomes more

pressing to understand state effects.

In this chapter I want to advance improvisation as a rubric that

challenges accounts of state weakness. As Heathershaw and Schatz

identify in the introduction to this volume, there is no external set of

criteria on which state strength may be identified, since the state itself is

a plural and mutable political agent. Instead of thinking of state

weakness as a value judgement, it is instead a means through which

certain articulations of statehood are granted credibility and reproduced.

In order to capture the social performances of the state the chapter

draws on two periods of fieldwork conducted in BiH, first in

October/November 2009 and then from September 2011 to October

2012. This research involved participant observation of Court activities

(in particular attending public outreach meetings and trial monitoring),

archival research of trial testimonies and interviews with members of the

Court, human rights NGOs, legal advocacy groups and victim

associations.

The practice of attempting to strengthen the state through the creation

of a new legal institution is understood here as an improvisation that

seeks to perform a particular understanding of law and society. In turn,

these performances are challenged and co-opted by groups that seek to

perform alternative ideas of the state. While this tension is more explicit

in the example of state-building in BiH, improvisation can be understood

as the general condition of state power. That certain practices do not

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appear improvised is a consequence of the accrued symbolic and

material resources of the performer, rather than an intrinsic legitimacy

that stands behind any assertion of sovereignty. In what follows I explore

this interplay between performance and resourcefulness in the

establishment of the CBiH and the controversies that have surrounded its

practices.

Geopolitics of Justice

On the 6th June 2002, the newly-appointed replacement to Wolfgang

Petritsch as High Representative, Paddy Ashdown, attended the

inaugural session of the Court of Bosnia and Herzegovina (CBiH). To the

assembled dignitaries and the newly-appointed domestic and

international judiciary, Ashdown outlined the significance of the

inauguration of the Court to the establishment of the Bosnia and

Herzegovinian state:

[The inauguration] is about protecting the people of this country,

protecting their rights and protecting their status as free citizens in

a functioning democracy. This court enshrines a simple truth – that

everyone is equal before the law. Justice is the foundation on which

every society is built. Everything else we want to do here, from jobs

to refugee returns to establishing a democratic system, depends on

the rule of law […] A functioning judicial system is a key component

of BiH’s integration into European structures (OHR, 2002b).

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From the outset the Court’s creation has been about more than simply

providing a new space to pursue legal redress. As indicated in Ashdown’s

comments, the Court has a symbolic function of constructing the internal

and external legitimacy of BiH sovereignty. In internal terms, this has

been a slow process involving the adoption of a new criminal procedure

code in early 2003, based on US-common law. This move aimed to

transform prosecution and trial processes, in particular eliminating the

need for an investigative judge, and introducing adversarial trial

arrangements and introducing plea bargaining (see OSCE, 2004). The

commencement of trials at the Court required the training of domestic

judiciary and the establishment of the State Investigation and

Prosecution Agency (Državna agencija za istrage i zaštitu or SIPA). There

was also the more straightforward need to locate a building that could

house the trial processes and the necessary registry functions. As one

Court official remarked in late 2009 “all the good buildings in the centre

of town had been taken by other government or international

organisations”, leading to the selection of a building on the site of a

former Yugoslav People’s Army (Jugoslovenska narodna armija or JNA)

barracks on Kraljice Jelene street, around five kilometres outside the

centre of Sarajevo.

The slow and contested process by which the CBiH has come into

existence illuminates the struggles to demonstrate the external

legitimacy of BiH. At every stage the creation of the court has required

international intervention whether through the drafting of laws, the use

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of executive powers to pass criminal procedure code blocked by domestic

legislators, the existence of a hybrid domestic and international judiciary,

or the funding of the building itself through two donor conferences

staged in The Hague (2003 and 2006) where governments pledged a total

of over €20 million. Of course, such impositions can lead to claims of the

unwanted nature of the institutions or the anti-democratic characteristics

of intervention (for historic example of such a position see Chandler,

2000). But the court was also serving a wider international purpose as

part of the completion mandate for the International Criminal Tribunal

for the former Yugoslavia (ICTY). From 2005 onwards the Court has

accepted transferred cases from the ICTY while SIPA has also

commenced investigations of newly uncovered crimes committed during

the 1992-5 conflict in BiH (see Nettelfield, 2010; Jeffrey, 2011). The

establishment of rule of law, and cooperation with the ICTY, is also an

essential element of the Stabilisation and Association Agreement for

negotiations over BiH’s potential accession to the European Union.

Recognition of BiH as a legitimate member of the international

community required the demonstration a coherent, centralised and

competent legal structure.

We can understand the production of a state legal system as a

geopolitical practice, since it is structured around a series of spatial

imaginaries of the state. The first is the normative construction of the

state as the locus of moral authority through which legal arbitration

should be undertaken. This sense of the localisation of judicial processes

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reflects a response to what Neil Walker (2010) has referred to as the

‘sovereignty surplus’; where European citizens experience multiple

layers of sovereign authority, entangling both state and European

structures of governance. The construction of the Court is – symbolically

at least – a means through which the BiH state territoriality and

sovereignty may be strengthened and asserted. The second aspect of

such geopolitics of justice reflects the desire to perform a separation of

responsibility between intervening agencies and the BiH state. In a

language that tends to infantilise, the construction of the BiH legal

system has been presented as the “growing responsibility” of the BiH

state for the crimes of its past and present (Jansson, 2005). The creation

of a new legal institution – like other aspects of state building – performs

a sense of the democratisation of the new state coupled with the severing

of responsibility of intervening actors.

But if the fraught processes of international state building after the Cold

War have illustrated one persistent truth it is that there is a dissonance

between the establishment of a new sovereign institution and its

reception by the domestic population as a legitimate materialisation of

the state. In order to understand the functioning of the Court we need to

disentangle form and effect, to explore how the CBiH has been asserted

and the sorts of contestation that have characterised its existence. These

events speak not only of the challenge of assuming the construction of

new state institutions necessarily leads to a strengthening of state

sovereignty, it also points to the ways in which questions of trauma and

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victimhood are mobilised in the urban post-conflict landscape in order to

assert alternative ideas of state legitimacy. This style of analysis carries

the danger of viewing a straightforward geometry of power between the

assertion of state sovereignty confronted and more insurgent practices

that seek to deliver its destabilisation (see Holston, 2008). This duality

can naturalise a series of assumptions, for example that internationally-

conferred authority is more legitimate than other forms of practice or,

alternatively, that domestically-organised resistance to the Court carries

with it an implicit democratic virtue. Of course, in practice neither is

true, since at every stage this form of scalar or normative politics is

contested in practice.

Instead, we need to look to the forms of resources mobilised by agents in

order to improvise the state, and from this certain assumptions about the

nature of statehood and law come to the fore. To this end we need to look

beyond these broad (and broadly virtuous) accounts of the geopolitical

implications of strengthening domestic legal systems and explore instead

the effects of their creation and operation. Drawing analytical inspiration

from Michael Dwyer’s (2013) recent exploration of the varied

conceptualisation of security in contemporary Laos, we need to trace the

micro-geopolitics of law, how particular outcomes reflect the wider

assemblage of ideas, bodies and materials within which they are

embedded. It is through these situated practices that we can begin to

trace the aesthetics and practices through which the adjudication of state

legitimacy is traced and contested.

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The Performance of Law

In order to understand the contestation over the CBiH and its particular

micro-geopolitics we need to return to its performance and materiality.

As Mulcahy (2010) has argued the architecture of court buildings

represents more than simply the backdrop to legal processes, their form

and arrangement reflect relationships between authority and society.

Such attention to the physical manifestation of legal practice is

particularly important where courts are used to consolidate and

strengthen ‘weak’ states. A focus on materiality points to the inherent

issue of visuality that underscores new judicial institutions and practices:

it is not simply a case of ensuring that justice is done, but that it is seen

to be done (see Hughes, forthcoming). Clarkson’s (2014) account of the

construction of the new South African Constitutional Court in Hillbrow,

Johannesburg, underscores the significance of visibility. Noting this

location as a site where where political prisoners were held during the

Apartheid, she observes that in this act “[c]ertain events of the past now

become the history of the constituted future, and the physical act of

constructing a building itself lays the foundational stone of the

constitution in both a literal and metaphoric sense” (Clarkson, 2014: 78).

Demonstrating a political strategy of orientating citizenship around a

shared future (see Staeheli and Hammett, 2010), the South African

example points to the power of reconfiguring the urban landscape to both

commemorate and emphasise a decisive break with the past.

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Similar themes of commemoration have encircled the establishment of

the Court of Bosnia and Herzegovina, in particular through its building

on Kraljice Jelene (see Figure 1). The shift in context between the South

African Constitutional Court and the CBiH is marked: the establishment

of any state-level institution or competence in BiH has been strongly

resisted by those who perceive such actions as eroding the constitutional

arrangements established at the GFAP. In many ways the struggle over

the legitimacy of the BiH state is materialised in the creation and

workings of the Court. Perhaps most explicitly, political leaders in the RS

have viewed both the creation of state-level institutions or constitutional

reform as direct threats to the autonomy their political entity. It is a

measure of the confidence in this resistance that Milorad Dodik, first as

Prime Minister of the RS and later as President, can mount a series of

criticisms of the Court, infamously claiming in December 2008 that he

would not allow “Muslim judges” to preside over cases involving RS

citizens:

It is unacceptable for the RS that Muslim judges try us and throw

out complaints that are legally founded. And we think that it is only

because they are Muslims, Bosniaks and that they have a negative

orientation towards the RS, and we see the conspiracy that has been

created (Milorad Dodik in B92, 2008).

This entwining of ethnic identity and legal bias reflects the deep

entrenchment of what David Campbell (1998), drawing on Derrida

(1994), has called the ontolopological characteristics of Bosnia after the

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GFAP: where identity and territory are inextricably fused by nationalist

politicians. In these terms the processes of legal arbitration is, like other

elements of political choice, read off as a consequence of religious or

ethnic characteristics.

Dodik’s comments illuminate the “herculean task” (Human Rights Watch,

2012) of attempting to strengthen state sovereignty through the

establishment of a transitional justice institution. The creation of the

CBiH challenges ontopology through its territorial jurisdiction over the

entire territory of BiH. But in order to do so, and in light of comments

such as those raised by Dodik, it has involved a hybrid judiciary,

comprising both domestic and international judges. Here then we see the

paradox of using courts to build states: that they at once demand further

incursions of external assistance in order to ensure the survival of an

experiemental legal instrument. In the case of the CBiH the mandate of

the international judiciary has been repeatedly questioned by RS

politicians who view their presence as a symbol of the neo-colonial

character of the new Court. The geopolitical imaginaries of separation

and distance cultivated through the devolving of responsibility to BiH

institutions is challenged and subverted through claims of international

supervision.

But the lens of improvisation is designed to look at the intricacies

through which law is performed rather than the more broad brush

geometry of formal political posturing. We cannot read-off the presence

of international judges as a rebuttal to criticisms of forms of ethnic bias,

15

but neither does a hybrid judiciary equate with entrenched international

involvement. During the research those working at the Court spoke of

the challenge of judges coming together to work in the state Court, often

in the shadow of animosity bred through the conflict of the 1990s.

“Everything at the Court is personal” one legal advisor to the CBiH

stated during the research “and most [judges] know each other from the

pre-war system” (interview, Sarajevo 10th December 2011). According to

one legal NGOs in Sarajevo the presence of the international judiciary

was an important aspect of the functioning of the Court, since the

international judges often had experience of working in war crimes

courts in other contexts (not least the ICTY or International Criminal

Tribunal for Rwanda, ICTR). In this respect intervening authorities and

Court officials have elevated the completion of trial processes above

potential criticisms of international supervision. This does not stop

resistance from BiH politicians to the presence of an international

judiciary, since in many ways this has become a proxy arena within which

dissent against international involvement in BiH may be voiced.

The resistance to the Court extends beyond the presence of international

judges. Indeed, a more profound set of arguments against the Court –

and limiting its state building potential – have been voiced against its

choice of site on Kraljice Jelene. The court was constructed using funds

from the European Community and the Government of Japan, with

individual bilateral donations paying for the refurbishment of individual

courtrooms. The aesthetics of the court space communicates a sense of

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bureaucratic efficiency and national symbolism, entwining functional

court equipment with the flags and crests of the BiH state. In a mundane

ways it seems a material expression of the internationally-sponsored

desire to convey the Court as both a site of legal redress and state

consolidation. But bland aesthetics and national place-making mask the

social contestation that has shaped the early history of the Court. The

past uses of the building on Kraljice Jelene are disputed, and these

disagreements have shaped public attitudes towards the legitimacy of the

court as a neutral arbiter of justice.

Figure 1: The Court of Bosnia and Herzegovina, Sarajevo (photography:

author’s own)

Between 1947 and 1992 the barracks were named ‘Viktor Bubanj’, after

a celebrated pilot in the Narodnooslobodilačka vojska i partizanski odredi

Jugoslavije (People's Liberation Army and Partisan Detachments of

17

Yugoslavia, Tito's army during World War II). The Barracks were located

on Bosnian Government territory, within the besieged city of Sarajevo, at

the outset of the conflict. Reflecting this positioning, in May 1992 the

barracks were commandeered by the Armija Republike Bosne i

Hercegovine (Army of the Bosnian Republic or ARBiH, loyal to the

Bosnian Government) and later renamed ‘Ramiz Salčin’ in

commemoration of an ARBiH soldier had fought and died in the siege of

Sarajevo. Salčin had been instrumental in organising resistance against

the forces of both the JNA and Republika Srpska and this name was

retained for the Barracks until the end of the conflict in December 1995.

In many ways these struggles over the name of the court capture

Rancière’s (2013) notion of the aesthetic act, where renaming points to a

desire to reorientate the commemorative basis of the barracks away from

the Yugoslav state towards the newly-established BiH state, while also

directing attention to the particular symbolic capital of naming this

prominent public building in west Sarajevo.

The events that took place at the barracks site during the conflict are

disputed. A large number of testimonies provided to the ICTY point to the

use of the site as a jail by forces loyal to the Bosnian government. For

example during the ICTY trial of Dragomir Milošević, a Bosnian Serb

guilty of a series of war crimes related to his command of forces

besieging Sarajevo between 1992-5, he noted that the Bubanj/ Salčin site

had been used as a kind of military court and prison:

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[The barracks were] the seat of the military court and the military

prosecutor’s office. That was also the place where the detention

units, the office for the development of military maps, and there was

a section of military police which partly catered to the military

justice organs and partly to staff (Dragomir Milošević in ICTY, 2007)

Other witness accounts corroborate this interpretation of the site. For

example a representative from the BiH Camp Detainees Association,

acting as a witness at the trial of Momčilo Krajišnik (a senior figure in the

Srpska Demokratska Stranka (Serb Democratic Party of SDS), sentenced

to 27 years in prison in 2006 and realised in January 2013), described a

conventional form of detention facility:

The Viktor Bubanj Barracks, as far as I know, was a traditional type

of jail. There were Serbs detained there, also 150 Bosniaks who had

been charged with crimes or had refused the mobilisation call. I was

interested in the Viktor Bubanj Barracks because of a colleague,

Jovočić. There were people of various ethnicities detained there and

detained for various reasons. That's what I know about it

(Representative from the BiH Camp Detainees Association, trial of

Momčilo Krajišnik in ICTY, 2005a).

This, then, is a narrative of continuity, in which the new Court is built on

a site where the arbitration of state-sanctioned justice had been

performed in the past. But others have painted a different picture of the

site and suggest that the barracks were the backdrop to a series of war

crimes, in particular against Serb prisoners of war. In March 2012 the

19

trials of Besim Muderizovic, Ramiz Avdovic and Iliuan-Nicolae Vintila

began at the CBiH, each indicted for crimes committed against inmates

at the Vikot Bubanj/ Ramiz Salčin barracks between June and November

1992. Again, ICTY transcripts provide a series of accounts of the

treatment of those interned at the barracks. For example, a witness in

the trial of Dragomir Milošević described the nature of the internment at

the camp:

The Viktor Bubanj barracks was a camp for Serbs, and on the third --

on the second and third floors, that was where their army had its

quarters. When we entered the Viktor Bubanj barracks they broke

my ribs, and I can show it to you if need be, you can see it quite well.

Then they knocked out my front teeth and I was in a sorry state, and

one of them approached me and stuck a knife point into my eye,

here where you can see a scar. And when another guard told him not

to do that, he said, let me beat the Chetnik. When I was able to beat

my Alija in the prison in Foca, my president, why wouldn't I be able

to beat a Chetnik? (Anonymous witness in the Dragomir Milošević

trial, ICTY 2007)

Accounts of the trials of Radovan Stanković, a member of the Vojska

Republike Srpske (Army of the Republika Srpska or VRS), illuminate this

alternative account. Stanković was indicted by the ICTY for war crimes

against civilian populations of the east Bosnian municipality of Foča, and

in particular the systematic use of mass rape as a weapon (see ICTY,

2003). In 2005 the Stanković case was the first to be transferred from

20

the ICTY to the CBiH, though not without the defendants vociferous

argument that he would not receive a fair trial in the new court:

I want to go there [to BiH] to fight them with the facts and

arguments and to break them down. But please, they want to turn

Viktor Bubanj, which is a notorious execution ground for Serbs and a

concentration camp, to turn that into a court and try me there. This

reminds me of a statement by George Bush when he says the prison,

the camp of Abu Ghraib, where crimes were committed, will be torn

down to erase any site of crime and a new camp, new prison, Abu

Ghraib will be built there for new crimes. They didn't even tear down

this notorious camp in Viktor Bubanj; they just repainted the walls,

the walls of the concentration camp that still bear the Serbian blood,

that are still speckled with Serbian blood; and this is where I am to

be tried. Serbian blood, the blood of innocent civilians, flowed there

in rivers, rivers of blood flowed there, people who were taken from

the Sarajevo […] (Radovan Stanković in ICTY, 2005b).

This performance before the world’s media was clearly intended to

challenge the neutrality of the new Court by emphasising its material

basis as a site of Serb persecution. Emphasising the difference between

Clarkson’s (2014) case of the Constitutional Court in Hillbrow,

Johannesburg, the location of the Court on the site of a former prison did

not cultivate a sense of the unified BiH state, but was rather used as a

symbolic resource that pointed to the imagined lack of neutrality in the

new judicial system. Stanković’s enrolment of haematological language

21

should not be dismissed as incidental, the invocation of blood flowing

through the Court points to the almost irrevocable sense of Serb

victimhood in this space. The rebuilding of the Court following the

conflict is presented as means through which this blood may be masked

but not erased.

The visceral invocation of Serb victimhood at the Court site has led

community associations protest the absence of any form of

commemoration at the site. Even before it housed trial processes public

disputes erupted concerning the selection of the site, in particular from

associations of camp detainees who has experienced either life in the

Viktor Bubanj barracks or other camps across BiH (for an account of the

role of associations of camp detainees in trial processes see Delpla,

2007). In 2003 the Saveza logoraša RS (RS Association of Camp

Detainees) organised a march on the CBiH site to protest about the

absence of any commemoration to the site’s former use and attempt to

place a plaque on the building, marking the site as a former “death

camp” where “2000 Serb civilians were killed, assaulted or tortured”

(Superbosna, 2003). Using the same symbolic resource the domestic and

international political elites used to commemorate the donation of

furniture and materials for the court building itself, the plaque serves as

a means through which materials may be enrolled into a politics of

claiming space. Rather than commemorating generosity, in this case the

desire is to materialise victimhood and stabilise moral claims with the

urban landscape. As I discuss elsewhere (see Jeffrey, 2012), the Vice

22

President of Saveza logoraša RS, Slavko Jović, drew a parallel between

the desire amongst those loyal to Bosnijak causes for memorial at

Srebrenica and the demands amongst pro-Serb groups for a plaque on

the Court building.

While the presence of an international judiciary provoked accusations of

international supervision, the claims of an engrained material bias

through the selection of the building seeks to challenge the unification of

the BiH state through the establishment of the Court. If claims of

international supervision undermine a geopolitics of separation, the

suggestion of a materially-inscribed ethnic bias undermines a geopolitical

strategy of spatial unification. The forms of resistance to the court are

diverse, but they share a common aesthetic act: the projection of identity

onto bodies (so called “Muslim judges”) or materials (the imagined blood-

stained walls) that limit the potential for the Court to be seen more

broadly by the Bosnian public as an honest or universal site of

arbitration.

Conclusion

I think everything [the Court does] in respect to the public they

could do more actively, I think, from answering criticisms to going

and meeting with these representatives of victims of associations

and explaining and giving these numbers [regarding sentencing],

giving this information out there, to try and lobby as hard as possible

and limiting as far as possible political attacks and politicians

23

commenting on what they do and how they do it (Legal and Media

NGO member, 20th March 2012)

As Heathershaw and Schatz identify in the introduction, the declaration

of weak and strong states has become a key policy performance, though

one that “may leave much in the shadow”. By focusing on improvisation I

have attempted to step tentatively into the shadow, though there is much

work to do to provide illumination. The enrolment of law and legal

institutions as a means through which states may be ‘strengthened’ is

itself a key area of scholarly dispute. As the NGO member states above,

there is a public perception that legal institutions could do more to

communicate their activities with the public and enter the political arena

by “lobbying politicians”. Of course, such activities stray far beyond the

responsibilities of a state Court, but this may point to the limitations of

law as a form of state building. As legal scholars point out, one of the

virtues of law within formalist accounts is its separation from the society

it serves. Within this frame, law is a detached form of rationality worked

through the abstracted claims of specific individuals (witnesses) and

materials (evidence). Rather than becoming more embedded in society,

legal arbitration should remain isolated and severed from social forces.

Of course, this formal legal account is challenged by scholars of socio-

legal studies and criminology, who suggest that regardless of its

normative claims, law is always embedded in society, it detachment is

illusory. Perhaps more importantly, this performance of detachment

simply limits the moral and political responsibilities of legal practitioners

24

to consider the implications of their decision making (see McEvoy, 2007;

Jeffrey, 2011). One of the questions posed by many of the NGOs and civil

society organisations studied as part of this research was whether the

use of law as a means of state building gives undue attention to certain

groups (in particular perpetrators) while marginalising or silencing

others (victims). Where Stanković could take the stand and declare his

innocence and the illegitimacy of the court process, victims, lacking legal

or psychological support, are forced to become silent observers. This is

where a clear distinction must be drawn between the experiences of BiH

in comparison to South Africa. While South African transitional justice

was structured around truth telling through amnesties, in BiH the

retributive model orientates attention on the guilt or innocence of single

individuals. Perhaps more crucially, the retributive model allows the

individual to continue to claim innocence even when guilty verdict is

reached and sentence passed (since the Court is cast as an illegitimate

arbiter of justice).

This chapter has argued that the interplay of the establishment of a new

Court of Bosnia and Herzegovina and practices of dissent can be

collectively understood as improvisations, where performances of

legitimacy are structured by available resources. Such improvisations

illuminate the difficulty of speaking empirically of the BiH state as

straightforwardly ‘weak’, emphasising instead the plural ways it is

brought into being; tracing in particular how its materialisation shapes

public perceptions of its authority. The example of the establishment of

25

the CBiH grants an insight into this contestation, as performances of

strength (the imposition of legal codes or the recruitment of a hybrid

international/domestic judiciary) are also the sources of weaknesses

(claims of legal bias or neo-colonial adventurism). The point is not to

suggest improvisation provides a replacement for the rubric of weak

states, but rather it is a form of analysis that traces the ways in which

legitimacy of the state is adjudicated and contested through its materials

and practices.

Acknowledgements

Thanks to the John Heathershaw and Ed Schatz for organising the The

Strength of Weak States in Eurasia workshop and to participants for

feedback and discussion. The research on which this chapter was based

was funded by the ESRC (RES-061-25-0479) and completed with the

assistance of Michaelina Jakala.

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