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Karl Popper in Srebrenica: On Justice and Truth after Genocide

Author(s): Richard A. Wilson
Source: Anthropological Journal on European Cultures, Vol. 13, Democracy, Science and the
Open Society: A European Legacy? (2004), pp. 69-92
Published by: Berghahn Books
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Richard A. Wilson

Karl Popper in Srebrenica: On Justice and Truth after

Genocide
Abstract

This article examines Karl Popper's critique of totalitarian justice in The

Open Society and its Enemies. It explores Popper's understanding of 'liberal justice' and examines the link between liberal justice and scientific
approaches to truth. In Popper's view, liberal justice requires a positivist
conception of truth to function correctly. What are the consequences of

Popper's formulation of the relationship between justice and science?

How, for instance, does it shape our understanding of the place of history

and truth in the courtroom? The article applies Popper's ideas on liberal
justice and scientific method to the International Criminal Court for the

former Yugoslavia [ICTY], which aims to determine guilt or innocence,

establish accountability and furnish an adequate account of violence in
Bosnia in the 1990s. It examines the case of General Krstic, originally
accused of genocide in Srebrenica. The article concludes that in Popper's
vision of the unity of methods of social and physical sciences, there is
little way of combining scientific information and historical interpreta-

tion in the way that we have seen the ICTY do in the case of General
Krstic. For Popper, science and the creation of universal and generalizable laws must always prevail. Popper provides a convincing account of
how democracy and therefore justice need science, and I have sought to
complement this with a role for historical interpretation as well. Historical interpretation is essential for liberal global justice institutions trying to

make categories of justice meaningful and build the rule of law in places

like Bosnia, Sierra Leone and Cambodia. This requires new forms of legal
reasoning which can demonstrate (scientifically) that criminal acts were
committed and (historically) that these singular acts were associated with
totalitarian political projects.

Keywords: Justice, History, Yugoslavia

Introduction

This paper examines Karl Popper's critique of 'totalitarian justice' in The

Open Society and its Enemies , Vol. 1, written during the Second World
War when the outcome of the war against fascism was by no means cer-

tain. It explores Popper's understanding of 'liberal justice' and exam69

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Richard A. Wilson

ines the link between liberal justice and scientific approaches to trut

Popper's view, liberal justice requires a positivist conception of tru

function correctly. What are the consequences of Popper's formulati

the relationship between justice and science? The article applies Pop
ideas on liberal justice and scientific method to the International Crim

Court for the former Yugoslavia [ICTY], which aims to determine g

or innocence, establish accountability and furnish an adequate accoun

violence in Bosnia in the 1990s.

The strengths and limitations of Popper's formulations of liberal justice and science are examined in the light of a legal case heard at the ICTY-

the judgment that General Radislav Krsti carried out a genocidal policy
against Bosnian Muslims in Srebrenica in 1995. The article concludes that
while Popper's liberal approach to justice is warranted, we need to expand
his approach to the truth required by courts in order to better integrate
forensic and positivist methods with historical interpretations. Only in this

way, can we do two things: make legal categories such as 'crimes against
humanity' and 'genocide' justicable and meaningful; and create the kind
of political understanding of the past required to marginalize nationalists
and other advocates of closed societies.

Popper on Totalitarian Justice

Plato recognizes only one ultimate standard, the interest of the state. Everything
that furthers it is good and virtuous and just; everything that threatens it is bad

and wicked and unjust. Actions that serve it are moral; actions that endanger it,
immoral. In other words, Plato's moral code is strictly utilitarian; it is a code of
collectivist or political utilitarianism. The criterion of morality is the interest of
the state. Morality is nothing but political hygiene.

Karl Popper The Open Society and its Enemies. Volume 1, 1966:107

Karl Popper's assertion that science and democracy form a dialectical

pair, each flourishing in contexts where the other is also present, has been

widely disseminated and discussed since the publication of volumes 1 and

II of The Open Society and its Enemies. Like many commentators, I am
skeptical of the view that a robust science can only develop in a democratic context of free exchange of views. This strikes me as a liberal myth
which I and many others would like to be true, but which is belied by some

uncomfortable historical realities; unfortunately, significant scientific advances can also occur in centralized and militarized states. Nazi rocket and

airplane technology was appreciably more advanced than the Allies', the
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Karl Popper in Srebrenica

Soviets put the first man in space, and the first successful heart tran
took place in apartheid South Africa. 1

The other side of Popper's famous equation, that democracy r

science in order to make rational decisions in the management of t

and society, is much more convincing. Democratic polities canno

rational decisions about the allocation of scarce goods or build m

overlapping consensuses unless they have access to the kind of e

that results from theory and experimentation in the context of open

and discussion. If the evidence used in political decision-making

cient, then the decisions will invariably be flawed, and skewed in
certain individuals and groups, thus violating liberal principles of
before the law.

Yet I would like to focus upon one dimension of Popper's thesi

has not has as much attention as others; that democracy requires i

and fair justice which applies equally to all individuals, and this
justice requires, at a minimum, a scientific approach to truth. A
they have been overshadowed by Hannah Arendt's [1958] The Or
Totalitarianism, 2 Popper's insights into both totalitarian and liber

strike me as useful for thinking, at least ideally, about the desired co

of liberal justice in countries emerging from authoritarian pasts.

For Popper, justice was at the heart of the totalitarian project.

Plato's Republic, the original wellspring of all totalitarian thought

itics in Popper's view, traditionally carries the subtitle 'On Justice

ume I of The Open Society and Its Enemies, Popper [1966:195] id

two main characteristics of totalitarian justice, which can be sum

in the statement, 'Men must be taught that justice is inequality a

the collective stands higher than the individual.' Totalitarian justi

signed to perpetuate hierarchy and inequality and it operates with

of holism and collectivism. Crucially, it subordinates the individua

interests of the state.

Firstly, let us examine the Platonic proposition that justice is

ity. Popper understands the emotional appeal of totalitarianism

1 Recognizing at the same time that some very bad science was also produced
societies, from Mengele's experiments in the death camps to Soviet 'psyc

incarceration of political opponents, to apartheid South Africa's attempt to fin

that would only kill black people.

2 Arendt 1958. Nowhere in The Origins of Totalitarianism does Arendt refer to

Open Society, yet her framework for understanding totalitarianism owes clear

Popper's earlier book.

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Richard A. Wilson

sponse to the strain and uncertainty brought about by rapid social

political change. In Plato's time, this meant the rise of Athens, the

humanitarian society based upon principles of democratic individua

and rationality. Totalitarianism's central emotion is nostalgia, hank

after a golden time when there was stability and calm and peace be

foreign influences were held at bay and everything was still in its p

This desire for autarky and stability brings with it a particular visio

rigid classificatory division of society, and a central feature of totali

states is that they reinforce and produce class or caste societies.

In his broadside against liberal individualism, Plato exploited

he saw as the weakness of the language of natural rights. Indiv

were not equal in their attributes and talents, and so rights should

be spread evenly throughout society. Instead, rights should be alloc

differentially according to individual aptitude and the societal functi
the individual in question. In Plato's Republic , every person occupies

particular place in society and is content in their predetermined pos

In accordance with the laws of nature, aristocrats rule, the warrior

war, merchants sell and slaves labor. Justice lies not in the fair treat

of individuals and their claims upon one another, but 'as a property

the whole state'. 3 This is one reason why Marxism developed a theor

the state, but never developed a systematic theory of justice. Justic

a byproduct of class relations, a secondary phenomenon which accr

to the overall nature of the workerist state, rather than resulting from

just operation of its procedures or treatment of individual claims and

doms. 4

The second major characteristic of totalitarian justice is its organic

theory of state and society. The totalitarian state embodies the collective

Geist of the nation. It is like an individual body itself, made up of the

masses of individuals who exert their combined will in the same direction.

It does not recognize individual human rights in opposition to itself, since

3 Popper [1966:90].
4 There are also explanations based in the logic of Marxist theory: law belongs in
the superstructure and no legal constraints can be placed on the exercise of popular
sovereignty, especially ones based on the bourgeois ideology of human rights. See
Karl Marx 'Power as the Basis of Right' (pp. 183-5) and 'On the Jewish Question'
(pp. 39 - 63) in David McLellan Karl Marx Selected Readings. Finally, there are other,
more ignoble, explanations of Marxism's neglect of justice, such as the cynical abuse
of political power. Stalin's show trials were perhaps the zenith of communism's trampling of the law.

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Karl Popper in Srebrenica

the two are fused in a single mission. Totalitarianism's desire for

rule is total, and it will not recognize any other loci of sovereign

viduals must sacrifice their private interests for the stability and

of the state. Popper cites Plato declaring that, 'You are created for

of the whole and not the whole for the sake of you [p. 100]'. Inde

itarianism vilifies individualism and treats it as pure, unadulterat

ism. This rejection of the individual has direct consequences for m

which liberals think of as a private matter. In a totalitarian ethics, th

valid morality is that which furthers the health and welfare of the s

For Popper, this was all a regressive step back into an 'arrest

alism, 5 and the closed society. He replies that while individualism

selfish and egotistical, it can also be the site of altruism, humane

ity and the type of personal social responsibility that was formu

the great Athenian democrat Pericles. Totalitarianism denounces

self-interest, but does not release us from self-interest because it
no more than the unassailable selfishness of the state: 'Totalitarianism is

not simply amoral. It is the morality of the closed society-of the group, or
of the tribe: it is not individual selfishness, but it is collective selfishness

[ibid., p. 108].

Popper's brand of liberalism could be described as Periclean humanitarianism, which relies upon a protectionist theory of the state: the state
exists to protect citizens' freedoms from the aggression of others. The
State is therefore a crime prevention society based upon a social contract
with its citizens. Justice in the liberal state is premised upon two central
principles which are, as one might expect, exactly the opposite of totalitar-

ianism; equality and the primacy of individual rights: 'We mean by justice
some kind of equality in the treatment of individuals' [ibid., p. 90].

Law in liberal states ought not to favor any particular individuals,

groups or classes #. The impartiality of the law must not be skewed by the

social position or the rank of an individual. Indeed open societies should

have as their goal the elimination of 'natural' privileges based upon race
or class. Citizens have a right to an equal share of the benefits which mem-

bership in the state brings. The state has a duty to defend the freedom of
individual citizens and protect them from the aggression of other individuals in the society. The morality of the state is secondary, as it is formulated
5 Popper 1966:182.
6 Popper does not, however, defend the idea of natural rights [p. 95 - 96], which he sees
as impressive but questionable on the grounds that it is too metaphysical.

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Richard A. Wilson

by the consensus of individual citizens. Citizens moralize politics,

than the totalitarian state politicizing individual morality.

The distinctions Popper drew between totalitarian and liberal so

are valuable for reminding us what is at stake in the conflict betwe

eralism and the opponents of open societies. The contrast also hel

think about totalitarian justice in modern societies characterized by

human rights violations. Popper wrote The Open Society in a way th

little doubt that he saw Nazi Germany and Stalin's Soviet Union a

modern inheritors of the Spartan legacy. Although these societies a

gone, we can observe characteristics of tribal Sparta in the militar

tatorships of Latin America, also ethno-nationalist states that emer

Eastern Europe after 1989.

For instance, the Balkan republics of Croatia and Serb-dominate

goslavia' were characterized by a combination of disciplinary mili

and virulent nationalism in the 1990s. The formal ideology of the

vic state - the creation of 'Greater Serbia' - was built upon an org

theory of the state. It desired stability, protection from change and fo

influences, and the realization of the ordained destiny of the Serbia

ple. The policy of 'ethnic cleansing' pursued by a number of parti

groups in the Balkans, was a direct outcome of the political and aes

ideals of holism and collectivism. The unity of Greater Serbia or G

Croatia, and the beauty and perfection contained in these ideals, we

by nationalists as lost, corrupted or contaminated by foreign influences

they ethnic, religious or ideological. The Romantic quest for beau

authenticity through collective unity, which one can trace in the in

tual line from Plato to Rousseau and Herder, has had catastrophic p

implications for human societies. For collective unity to be realized,

quires Romantic politicians to 'purify, purge, expel, banish and kil

those whose very existence defies that vision of social unity.

Popper's conception of justice also gives us direction on how to

with the human rights' violations of repressive states. By far the

common strategy in democratizing countries of Latin America and

has been to grant some kind of amnesty, usually in a broad or bl

manner, to those who committed violations as part of the political conf

This has been justified by politicians, religious leaders and lawyer

number of grounds, including the need to avoid jeopardizing the tra

and instigating a return to violence, the need to consolidate demo

7 Popper [ibid., p. 166].
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Karl Popper in Srebrenica

and ensure social stability, to reconcile ethnic foes and heal the w

of a scarred nation. 8 Popper would certainly have not appreciated

language of state morality which seeks forgiveness for perpetrator

would he have valued organic and holistic metaphors of the 'social

in need of healing or reconciling. Liberal justice is content to take
of justice and leave reconciliation, forgiveness and the transformat
morality to individuals.

Human rights activists and their scholarly sympathizers have op

amnesty in places like South Africa and Central America, and often
have done so on the grounds that amnesty violates inviolable indiv
ual rights and obstructs the establishment of the rule of law. 9 Adv

of liberal justice are unwilling to accept the claim that social unity

stability are greater goods than the individual rights to justice ensh

in post-authoritarian constitutions. 10 Almost certainly, one can ob

amnesties on the grounds that they violate Popper's equality princ

Individual rights cannot be suspended because of a Platonic ideal o

'stability of society". " All citizens are equal before the law and lib
justice requires that the same crimes be dealt with by the criminal

system equally, regardless of the social status of particular individu

class of people [e.g., the military, police, political party members] c

treated differently than others by virtue of their membership in a coll

group or institution. For the rule of law to be meaningfully establi

those crimes against humanity for which there is universal jurisd

[e.g., genocide, torture and slavery] must be dealt with in the sam
across the board. If a person kills, then it does not matter whether the

was killing for personal reasons or for the historical destiny of his

We can see then, that Popper's definition of totalitarian and open

eties and the kinds of justice they rely upon has implications for the

sition to democracy and the building of the rule of law. It is a prin

defense of liberal justice in the context of significant pressures to

8 See Boraine 2001, Nino 1996, and Tutu 1999. See Bomeman [2002] for an anth
logical definition of 'reconciliation' and see volume 15, No. 1 of Public Cultur
critical responses from other anthropologists.

9 See Orentlicher 1991, Popkin and Bhuta 1999, Roht-Arriaza and Gibson 1998.
10 See, for example, the post-apartheid South African Constitution of 1 996.

Popper's collected works are a sustained critique of the reified idea of 'societ
collective agent. Society is an abstract category created by individuals and is ch
terized by change, internally fissured by class and individual interests, and the

not a collective actor which can make a priori claims for 'stability' and security

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Richard A. Wilson

elements of totalitarian justice [and especially, the ideas of inequality

punity and the primacy of collectivist political aims] in the new lib
dispensation.

However, Popper's distinction between open and closed societi

too sharply drawn and needs further qualifying if we are to employ

social science analysis, which requires finer gradations of comparison

philosophy. In the area of justice, as in other areas, societies are not e

fully open or fully closed, completely Spartan or utterly Athenian, 1

they are seldom fully liberal or fully totalitarian. Some societies w

would qualify as 'closed', such as apartheid South Africa, had some
tures of openness which allowed a space for democrats and anti-apar

campaigners to challenge the status quo. As Richard Abel demonstr

in his magnum opus Politics By Other Means: Law in the struggle ag

apartheid 1980 - 1994, the South African legal system was certainly
cive, yet it was independent enough from the apartheid project that

aspects of 'grand apartheid' [including the Immorality Act which for

interracial marriages, and the Pass Laws which controlled the resid
and movement of non-whites] were challenged and dismantled long
fore the first multiracial elections of 1994.

Conversely, some countries such as the United Kingdom which q

ify as 'open societies' can engage injustice practices which, although

totalitarian, are of a closed, repressive nature and which are regularly
sured by the European Court of Human Rights. This has particularly

the case in anti-terrorist legislation and court trials which have led t

merous miscarriages of justice since the 1970s [e.g., the closed, non
Diplock courts, the Birmingham Six case] in relation to the nationa

campaign in Northern Ireland. I point this out not in order to relativize p

litical systems and certainly not in order to place apartheid South A

on a par with the United Kingdom, but instead to turn our focus away fr

the stark dichotomy of 'closed' and 'open' societies.

There seems to be little to be gained by social scientists going aro

and categorizing each society as either 'open' or closed', especial

the context of the globalization of law which breaks down boundarie

tween nation-states. As an alternative language, we may prefer to ref

descriptive qualities of 'openness' and 'closedness' found in a mixed
sure in the justice systems of most nation-states and inter-governm

12 Neither were Sparta and Athens, for that matter, and it has often been noted th

latter was a slave society.

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Karl Popper in Srebrenica

organizations. This focus on attributes rather than whole societies s

more flexible and careful way of describing the empirical realities

tice systems, while at the same time preserving the main tenets of Pop
program.

The Truth Required for Liberal Justice

To give a causal explanation of an event means to deduce a statement wh

scribes it, using as premises of the deduction one or more universal laws, t
with certain singular statement, the initial conditions.
Karl Popper The Logic of Scientific Discovery, 1959:59

Now that we have identified Popper's understanding of totalitarian

and his restatement of the basic principles of liberal justice, we n

turn to the part of his argument which links liberal democracy to

and truth. If democracy requires science, and democracy is based up

practice of justice, then what is the relation between justice and sc

What kind of truth does liberal justice require to function? Is this a

kind of truth, or does justice require a different form of knowledg

other democratic institutions?

As far as I know, Popper does not directly address this question

where in his writings, so his position must be deduced by connecti

various facets of his writings. It becomes clear fairly quickly, thoug

Popper perceives justice as epistemologically fortified by a positivis

ception of science. Moreover, positivism has been the official ideolo

Western law at least since the eighteenth century. ,3.

Popper was known for espousing a variant of positivism which

out of the logical empiricism of the Vienna Circle in the 1920s. L

empiricism rejected all forms of metaphysics, which is one reason

Popper did not employ natural rights to ground his formulation of

lationship between individual and state. Statements about society, p

morals should be evaluated from a position of the science created

derstand the material object world and the ideal model for the crea

knowledge about society is physics. Like the physical sciences, the

sciences should be searching for causal explanations which take the

of general laws that can be universalized.

13 And by this I mean positivism as a method to produce and evaluate evidence us

courtroom, not as a theory of law [see Hart 1958], although the two are linked,
view.

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Richard A. Wilson

Popper's appeal for a social science which discovered universal la

and his lack of regard for more interpretative and hermeneutic appr

to society, explains why for many years he has been out of favor in

cultural anthropology and other 'softer' social sciences. However, o

positivist social scientists such as Marx and Comte still have their fo

ers and merit ongoing scholarly discussion, even though Popper's p

tivism was in many ways more cautious, conditional and contingen
laws are not iron laws for all time and are not of the order of Marx's for-

mula: 'The history of all societies is the history of class struggle.' They
only occupy a temporary and provisional position until logical argumentation or new evidence [or both] replaces them with better explanations.

Where Popper's epistemology becomes more difficult to defend is

when he deals with history and interpretation. Now formally, Popper was

opposed to any division between the social and physical sciences, and endorsed, pace Hayek, a unity of method and theory 'of all theoretical or
generalizing sciences [2002:120]'. Yet Popper places such strict and difficult tests and conditions for theory, that he ends up having to exclude
much history as untestable and unfalsifiable:
But as a rule, these historical 'approaches' or 'points of view' cannot be tested.
They cannot be refuted, and apparent confirmations are therefore of no value,
even if they as numerous as stars in the sky. We shall call such a selective point
of view or focus of historical interest, if it cannot be formulated as a testable
hypothesis, a historical interpretation. [2002:139- 140; emphasis in original]

Despite his formal commitment to theoretical unity, Popper's philosophy

of science leads him to make stark distinctions between history, and presumably, had he ever thought about it, socio-cultural anthropology on the

one hand, and science on the other. In The Open Society and its Enemies,
Volume 1, before his discussion of the Peloponnesian wars between demo-

cratic Athens and tribalist Sparta between 431 -403 BC, Popper qualifies
his comments thus: [1966, p. 171] 14
I do not claim scientific status for this method, since the tests of an historical
interpretation can never be as rigorous as those of an ordinary hypothesis. The
interpretation of history is mainly a point of view, whose value lies in its fertility,

in its power to throw light upon the historical material, to lead us to find new
material, and to help us to rationalize and to unify it [emphasis in the original].
14 See Outhwaite 1987: 8 - 9 for further discussion of Popper and historical explanation.

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Karl Popper in Srebrenica

For Popper, true knowledge is produced through the interaction of

able general theories and verifiable evidence. This rules out many

kinds of assertions made by historians and anthropologists about so

and politics. For instance we could advance the assertion that Serb

tionalist violence against Croats and Muslims in Bosnia-Herzegovin

the early 1990s was not solely the inevitable result of ethnic hatre

ing back to the Second World War [or Ottoman and Austro-Hung

Empires], but resulted from the conjuncture of a number of histo

specific factors in the late 1980s and early 1990s including the co

of communism, economic deterioration, and a terror-inciting prop

campaign carried out in Bosnia by Serb politicians. This is the off

view of the Hague tribunal, as outlined in the 1997 Tadi judgment

assertion, which I hold to be a more plausible account of the Yugo

conflict than all others, 15 would not, however, meet Popper's crit

scientific explanation. For a start, it does not lend itself easily to

ria of scientific falsification through experimentation. Granted, it i

falsifiable than 'Local Serb identity is constructed by globalization

much less falsifiable than, 'Higher crime rates in 1990 in Prejidor, B

were the result of increased unemployment caused by economic c

Science requires experiments in controlled conditions, where fact

introduced and measured one by one and judged as causative or no

the historical conditions in the former Yugoslavia of ideological co

nationalism and economic crisis are complex, intertwined and histo

unique. 16 The theory that they caused violence rather than any oth

sons relies upon a control case which does not exist. Although othe

ern European states experienced similar conditions after 1989, on

not find exactly the same set of conditions existing elsewhere with

to falsify the theory. Attempts to do so would either be counter-f

and therefore speculative, or run into the problem of other situatio

ing somewhat different historical conditions and therefore violatin

experimental and 'control' conditions that the evaluation process re

Further, there is the problem of the level at which the explanati

erates, since it may be asserted without the intention of it being a '

13 Mostly on the grounds that, had there been lingering ethnic hatred of a ge
kind, there would have been inter-ethnic violence between 1945 - 90. There wa
however.

16 Popper [2002:135], it should be pointed out, rejects the views that social con
are unique and societal explanations are of a more complex order than phy
chemistry.

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Richard A. Wilson

law' per se. Even if the theory in question could be accepted for som

nationalists, it hard to see it as a general law, since not all Bosnia

reacted to the same conditions with genocidal violence, nor did al

populations in eastern Europe who lived through comparable cond

Our assertion fails as a general explanation because scientific explan

are built on the assumption that 'where circumstances are similar,

things will happen' [Popper 2002:7]. This does not mean, however,

the assertion in question is wrong and that a large number of Bosn

men did not commit violent acts because of the reasons given, and n

marily because of other reasons, e.g., simmering antipathy from t

ond World War. Social science theories and evidence may aspire to

contingent explanations without being universal explanations. The

seldom of the type which allows universal law-making of the kin

by physics, where there is great deal more opportunity for creatin

fiable theories, for isolating and controlling causal factors, and rep

the process to verify the evidence. This is because, in part, they

at the level of necessary, rather than sufficient conditions - which

exist in social situations. This is not good enough for Popper's str

positivism: since where there is no universal law, there is no expla

Popper's skepticism towards many non-generalizable forms of h

ical interpretation is perhaps more comprehensible when dealing w

relatively limited evidence available regarding Ancient Greece and

between Sparta and Athens, which we know about primarily throu

writings of the less-than-wholly-reliable Thucydides. It is not very

factory, however, when trying to document the recent history of the

war in Argentina, when during 1978 - 1983 up to 30,000 individual

killed by the Argentinean military. The scientific method can reve

portant truths, such as how many people died in Argentina, and the m

in which they were killed. Yet, that is not enough, even for the limite

of attributing responsibility, since individual agency was part of a s

atic program of the military's National Security Doctrine. In the Ar

case, the individuals who committed the acts one is trying to comp
are still alive and can speak about their intentions and motivations.

ical consciousness is therefore recoverable by both the courts and

researchers, and has a bearing on a more comprehensive historica

legal understanding.

This matters because justice in democratizing countries is alway

cerned with history, and each courtroom case writes, even if only part
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Karl Popper in Srebrenica

the history of an era of abuse and violation. 17 The history of actually

isting totalitarian practices and beliefs is constructed, not from texts

ancient discourse, but from an untidy variety of different forms of

dence. If the only form of knowledge allowed in a trial is that whic

produced through positivist methods, and historical interpretation is

a 'point of view', then this profoundly circumscribes the range and s

of justice which is administered. Popper's overly narrow understand

of the relationship between justice and truth robs us of the potential

courts might produce an account of the past that both gets the facts strai

and is broad enough to counter the many historical distortions conco

by nationalists and military dictators to justify and cover up their crimes

Popper left us a body of work characterized by rigorous logic, a

tailed attention to evidence and an admirable commitment to liberal p

ciples. Yet Popper's main fault lies in his dichotomizing: science vers
history, naturalism versus anti-naturalism, open versus closed societ
and totalitarian versus liberal states. Most social scientists would now re-

ject Popper's dualisms and his strict classifying 'this is history, that is science'. As some have noted, 18 logical positivists since Neurath were largely
insulated from the social science of their time. Nowadays, the antimony of
historical interpretation and science needs integrating within two forms of

knowledge production: social science and the law. In order to understand

how and why political violence occurred in a country or how and why a
particular individual or group of individuals is responsible for a program
of 'ethnic cleansing' we need both forensic testing of material evidence to
tell us who did what to whom and historical interpretation to establish the
political and social context of mens rea , or criminal intention.
This is more than a call for liberal justice to employ history to complement its positivist methods. Positive knowledge and history do not just

lie side by side but are components of a system of understanding that is

fundamental to each of them. Both forms of knowledge are transformed
by being brought into a relationship with one another. The bodies, bones

and bullets do not speak to us directly and independently of their social

contexts, nor is history just a 'point of view' unsupported by any meaningful evidence; positive evidence is not so hard as to be unmediated and

unquestionable and historical evidence is not so soft as to disappear in

a morass of perspectivism. In the view advocated here, anthropologists,
17 See Douglas 2000 and Osiel 1997.
18 Outhwaite 1987:9.
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Richard A. Wilson

other social scientists and legal investigators can build rigorous th

of public violence out of a wide variety of available evidence. Now

can call this method of theory construction 'science', or, since it

little similarity to physics, one can call it something else. What m

is that knowledge is created in a way that leads to the credible de

nation of guilt, an adequate historical accounting of an era of abu

proportional punishment of perpetrators and the building of the

law and therefore the foundations of democracy in places like Bo

Herzegovina. These are, I realize, high expectations, but they are on

manded by the circumstances in countries seeking to deal with ge

and nationalist violence and [rebuild the rule of law. The next sec

argues that this epistemological integration has been largely achie

practice by the International Criminal Tribunal for the Former Yug

General Krsti and Genocide in Srebrenica

Athena to Orestes and the Furies:

I will appoint the judges of manslaughter,

Swear them in and found a tribunal here

For all time to come.

My contestants

Summon your trusted witnesses and proofs,

Your defenders under oath to help your cause
And I will pick the finest men of Athens,
Return and decide the issue fairly, truly-

Bound to our oaths, our spirits bent on justice.

Aeschylus The Orestia 19

As I have argued so far, the allegory of the struggle between tribal

Sparta and humanitarian Athens can be applied in certain ways to the democratizing countries of Latin America, Africa and Eastern Europe in the

1980s, 1990s and present. If ethno-nationalists, military dictators, communists and white supremacists have promoted elements of totalitarian
justice and ethics, then who are the democratic inheritors of the Athenian tradition? They would be the domestic and international politicians
and members of social movements who opposed massive human rights
abuses. One of my arguments against the dualism of 'open' and closed'
societies was that processes of globalization had ruled out the possibility
19 Eumenides 495 - 500, Aeschylus The Orestia.

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Karl Popper in Srebrenica

of bounded societies, and we can also include international actors su

UN humanitarian missions in our categoiy of Athenian democrats

ever imperfectly they might realize democratic ideals in practice, U

sions in Bosnia, Guatemala, Sierra Leone, East Timor and elsewher

made significant contributions to building democratic state institu

They have espoused basic principles of democratic governance, prom

free and fair elections, engaged in economic reconstruction projec

advocated a strong civil society and free press.

In the last 20 years, UN missions have placed a great deal of emp

on the rule of law. In the 1980s, they were involved primarily in w

new constitutions and penal codes, and in training and equipping st

reformed criminal justice systems. In the 1990s, the UN took a new

tion in the role of establishing rule of law through creating institut

legal accountability for past human rights violations. The argume

that democratic state-building and reconciliation in places like Bo

Herzegovina and Rwanda could not occur where a situation of imp

still prevailed. Since national legal institutions were either not up t

task or were prevented from trying perpetrators by national polit

the UN established ad hoc international criminal tribunals for Rwanda

[ICTR] and the former Yugoslavia [ICTY]. These were located outside of
the countries concerned, in Arusha and the Hague respectively, but by the
end of the 1990s, the UN was preferring hybrid tribunals in the countries,

comprised of international and local legal officers M.

The ICTY was established by the UN Security Council in 1994, three

years after the Balkans conflict started and at the height of the war in
Bosnia. It was seen by many observers as too little too late, and as an
attempt by the international community to assuage its guilt for standing
by while genocide took place in Europe. Although Europe had declared
'Never Again' after the Holocaust fifty years previously, the Balkans conflict attracted minimal political will on the part of the international community to intervene to avert further bloodshed and even less will to pro-

vide coercive backing to the new Tribunal. One NATO official was widely
quoted as saying that, 'Arresting Karadi was not worth the blood of
one NATO soldier.' 21 The ICTY was therefore received initially as a face-

saving device, an ad hoc measure which would not fundamentally alter

20 This model was adopted in Sierra Leone and is presently proposed for trials in Cambodia of the crimes of the Pol Pot era in the 1970s.

21 Quoted in Robertson [1999:286].

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Richard A. Wilson

the balance of power in the region away from the nationalists, nor

large measure of accountability to the war-torn Balkans.

The Tribunal's critics seemed to have been proved correct by the

years of the work of the ICTY. The Tribunal proceeded at the glaci

characteristic of legal institutions, with few indictments and arres

first convictions were four years in coming, and these concerned

middle order operatives. By early 2000, only three senior official

in custody in the Hague. The arrest and trial of higher level auth
the conflict such as President Slobodan Miloevic seemed as far aw

ever, and some commentators predicted that they would never be

[Sharf 1999]. Yet the ICTY proved more successful than the early

suggested, as the convictions started accumulating, and as higher

perpetrators were arrested and put on trial.

General Radislav Krsti was one of the first high level perpetrat

be arrested by NATO in 1998 and brought to the Hague. In Augus

Krstic was convicted of leading the Bosnian Serb Army [VRS] as i
mitted genocide against the Bosnian male population of Srebrenica

nine days from July 10- 19, 1995, when the Drina Corps surround

town and methodically slaughtered 7000 men and boys. In the acc
of the events of Srebrenica in 1995 contained in the Krstic judgme

ICTY denied that it was writing an historical interpretation or iden

underlying causes of the violence:

The Trial Chamber leaves it to historians and social psychologists to plu

depths of this episode of the Balkan conflict and to probe for deep-seated
The task at hand is a more modest one: to find, from the evidence presen

ing the trial, what happened during that period of about nine days and, ultim

whether the defendant in this case, General Krstic, was criminally resp

under the tenets of international law. . . The Trial Chamber cannot permit it

indulgence of expressing how it feels about what happened in Srebrenica.

defendant, like all others, deserves individualized consideration and can

be convicted if the evidence presented in the court shows, beyond a rea

doubt, that he is guilty of acts that constitute crimes covered by the Statute
Tribunal. [IT-98 - 33-T, at 2]

Despite this qualification, the Krstic judgment goes on to write a

comprehensive narrative overview of the conflict in the Srebren

from 1991 - 1995, under the heading 'findings of fact'. 22 It starts wit
22 It did not, however, deal adequately with victim testimony. Dembour and

[2004] argue that the ICTY courtroom silenced victims' voices in the Krsti tri

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Karl Popper in Srebrenica

history of the breakup of Yugoslavia, a history already told in the

Tadi judgment: Marshall Uto discouraged nationalism but then di

before communist rule ended, when a rising nationalist movement p

upon economic woes and filled the ideological gap left by commun

The narrative moves quickly to the strategic importance of the enc

Srebrenica, and how it was 'never linked to the main area of Bosnia
land in the west and remained a vulnerable island amid Serb-controlled
territory [13]'. An army of Bosnian fighters were created under the lead-

ership of Naser Ori, which recaptured Srebrenica in 1992 and pressed

outwards to create an enclave of 900 square kilometers. This enclave was
reduced to 150 square kilometers by Serb counter-offensives in 1993 and
Bosnian Muslims began converging on Srebrenica for safety.
In March 1993, the Commander of the UN Protection Force [UNPRO-

FOR], General Philippe Morillon of France visited the town and declared
it a safe haven which would be protected by UN soldiers. Morillon told
the population that the UN would never abandon them and on 16 April,
1993, the UN Security Council passed a resolution declaring Srebrenica
a 'safe area'. On the ground, the UN resolution amounted to very little.
UNPROFOR commanders were not given the resources they needed to
actually protect the town and UNPROFOR soldiers numbered no more
than 600 lightly armed men. In January 1995, the town was being protected by only 400 soldiers of Dutch Battalion ['DutchBat'].
The situation continued to deteriorate and the enclave was surrounded

by three heavily armed brigades of the Bosnian Serb 'Drina Corps'. The

Drina Corps had a clear command structure and communications system that the Bosnian Muslim Army [ABiH] lacked, and in March 1995,
Radovan Karadi, the President of the Republika Srpska, issued a directive to tighten the noose on the city. Food, water and fuel supplies became more scarce. After he signed the UN 'safe area' agreement, General
Halilovic of the ABiH ordered his troops to demilitarize the safe area but
did not require them to hand over weapons to the UN, as required. Indeed,

the ABiH continued skirmishing with the surrounding Serb forces, who
thought the Muslim forces were using the safe area to rearm and launch
offensives against the VRS.

The VRS offensive against Srebrenica began on 6 July 1995 and met
with little opposition from UNPROFOR. There was no NATO air support
until 1 1 July but this stopped when the VRS threatened to kill the Dutch
troops. On 1 1 July Generals Mladic [Commander of the Drina Corps] and
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Richard A. Wilson

Krsti [Chief of Staff] entered the city victorious and Serb soldiers
to wage an active campaign of terror, burning houses and attacking

ians. 20 - 25,000 Muslim refugees, the vast majority women and chil

fled to the UN compound at Potocari, in Srebrenica. Up to this point

judgment's narrative has been fairly singular and coherent, but bec
more fragmented as the judgment relies on witness accounts to des

the conditions and events at Potocari. On 12 July, Serb soldiers ent

the compound and executed hundreds of men behind the Zinc Factory

raped a number of women. On 12 and 13 July, the VRS removed all

lim refugees from Potocari by bus and by 14 July not one Muslim wa

in the UN refugee compound. DutchBat soldiers who tried to escort

refugee buses had their vehicles stolen.

Meanwhile, a column of 10- 15,000 Bosnian Muslim men and boy

about a third soldiers of the 28th Division of the ABiH, tried to br

through Serb lines. The majority were caught on 12 July and held by

forces, which began a program of mass executions which followed a

mulaic pattern. The men were detained on football pitches, in school

warehouses. They were bussed to execution sites in isolated fields w

they were blindfolded and their wrists were bound with ligatures.
were lined up and shot and buried in mass graves using bulldozers:

Almost to a man, the thousands of Bosnian Muslim prisoners captured, foll

the takeover of Srebrenica, were executed. . . Most were slaughtered in care

orchestrated mass executions, commencing on 13 July, 1995, in the regio

north of Srebrenica [67].

Despite its earlier eschewal of the 'indulgence' of moral comment, t

judgment cannot help but refer to these executions as 'an unspeaka

human evil [70].'

Now upon what kind of evidence was this account of genocidal v

olence based? The Krstic judgment makes clear that it's history

grounded in a 'mosaic of evidence': 'The Trial Chamber draws from a

saic of evidence to paint a picture of what happened during those few

in July 1995 [4].' This inclusive approach encompassed testimony fr

witnesses from Srebrenica, survivors of execution sites, forensic evi

of exhumed graves, aerial photos, testimony of United Nations person

intercepted communications of the Bosnian Serb Army [VRS], reco

seized from the VRS, and finally the testimony of General Krstic him
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Karl Popper in Srebrenica

Trae to the positivist method, the heart of the case against Krsti

built upon the scientific and forensic evidence of the executions of Bosn

Muslim men. This included aerial reconnaissance photos of the thou

of captured Bosnian Muslim men held on the Nova Kasaba footbal

from July 12 onwards, and intercepted VRS communications which

ified key elements of the case. The Office of the Prosecutor cont

forensic scientist D. Manning to carry out 21 exhumations of grav

around Srebrenica. The mass graves yielded a great deal of forensic

mation about the men and how they were killed. Identity documen

other personal belongings such as license cards and verses from t

ran demonstrated that the victims were Bosnian Muslims from Sreb
Skeletal remains showed that all victims bar one were male and 17.5 %

were between 13-24 years and 82.8% were above 24 years. The majority
of victims were not killed in combat, since 423 ligatures and 448 blindfolds were found on corpses at 13 separate sites. This and the fact that
some victims were either too young or physically handicapped to be combatants suggests that Bosnian Serb soldiers did not distinguish between
civilians and combatants and that they were not engaged in combat at the
time of their death, though the Trial Chamber did not rule out the possibility that some may have died fighting.

Defense counsel called expert witness Dr. Zoran Stankovi who contested the methodology and conclusions of the Prosecution's forensic re-

search. He argued that the bodies were killed in combat, but this was
rejected by the Chamber on the grounds that the Prosecution's forensic
information was more scientifically credible. It was supported by further evidence that Bosnian Serb soldiers exhumed and reburied bodies
in an attempt to hide them, and by survivor testimony which corroborated
the forensic evidence. Forensic information was vital to the Prosecution's

charge of genocide against Krsti, and without it the trial would have col-

lapsed. For Krsti's crimes to have been war crimes rather than random
killings in the conduct of battle [which is legal according to the laws of
war], the Trial Chamber had to be convinced beyond reasonable doubt
that the men and boys were systemically murdered after being captured,

according to a general plan coordinated by Krsti and others in the VRS

leadership. Without shared intention to cany out a joint criminal project
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Richard A. Wilson

'to destroy, in whole or in part, a national, ethnical, racial or relig

group', 23 there is not genocide.

This question of shared intention brings us to the second main bo

evidence in the Trial Chamber's 'mosaic of evidence' and which falls into

Popper's category of 'historical interpretation'. Forensic evidence was not

sufficient to make the indictment of genocide meaningful - even defining

the term itself requires a more open approach to knowledge. The Krsti
judgment notes the longstanding debate about what constitutes 'a group'
and asserts that any attempt to differentiate:
on the basis of scientifically objective criteria would thus be inconsistent with the

object and purpose of the [Genocide] Convention. . . A group's cultural, religious,

ethnical or national characteristics must be identified within the socio-historical

context which it inhabits [556-7].

What the court also needed was an account of motivation and intention

that demonstrated that genocide was the outcome of a long-term political strategy by Bosnian Serbs to 'ethnically cleanse' and control the Srebrenica area. Genocide is proven when the prosecution can prove dolus
specialis, or special intention, which is a higher form of premeditation
over a longer period of time to commit genocidal crimes. It is defined as
'a particular state of mind or a specific intent with respect to the overall consequence of the prohibited act [571].' For an act of murder to be
genocidal, there needs to be a shared plan beyond the act itself, an 'ulterior motive' 24 and an awareness of the genocidal consequences of the
act. Genocide is a collective war crime- it requires a policy and organized
method that cannot be carried out by one person alone. In delineating a
general program of extermination and expulsion, and placing individual
acts within it, forensics mean little and historical interpretation and context are everything. Proving special intention to destroy a group in whole
or in part requires a resilient historical and contextual account of individual acts and intentions.

What was that wider plan that made the Srebrenica mass executions
genocidal? When asked why he thought the mass executions of Bosnian
Muslims had taken place, General Halilovic stated 'It was cleansed. . . and
23 Article 2, Convention on the Prevention and Punishment of the Crime of Genocide

[1948].
24 The Krsti judgment [194, FN 122S] cites the earlier Akayesu judgment at the ICTR
in its discussion of 'ulterior motive'.

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Karl Popper in Srebrenica

[it was] an area which was between two Serb states.' This became
sis of the courts historical interpretation of the 9 days in July 1995.

end of the judgment, the discussion notes that in 1992 the UN G

Assembly defined ethnic cleansing as 'genocide' and it asserts that

cleansing had been going on in Srebrenica since 1993. The Podrin

gion in which Srebrenica was located was between two Serb regi
the events in Srebrenica in 1995 were the culmination of a longer

plan by Serb politicians, such as Radovan Karadi, and milita

manders such as Mladic and Krsti to unite those Serb regions and
a unified Serb Republic [of Greater Serbia].

Conclusions
In Popper's vision of the unity of methods of social and physical sciences,
there is little way of combining scientific information and historical interpretation in the way that we have seen the ICTY do in the genocide at
Srebrenica. For Popper, science and the creation of universal and general-

izable laws must always win hands down. Liberal justice can only rely on
science to generate the truth required for fairness. Popper provides a con-

vincing account of how democracy and therefore justice need science, and
I have sought to complement this with a role for historical interpretation as

well. This is not simply the plea of a qualitative social scientist who wants

a look in - it is about the task of constructing a theory of liberal justice

which has broader epistemological foundations. Historical interpretation

is essential for liberal global justice institutions trying to make categories
of justice meaningful and build the rule of law in places like Bosnia, Sierra

Leone and Cambodia. UN courts are now passing down rulings on criminal categories such as genocide that have not been used since Nuremberg.
This requires new forms of legal reasoning which can demonstrate [scientifically] that criminal acts were committed and [historically] that these

singular acts were associated with totalitarian political projects.

So far I have made the argument that liberal justice now needs a more

expansive understanding of truth on epistemological and legal grounds,

but there are other reasons too. There is a moral imperative to include
human subjectivity and agency and interpretation which draws upon Pop-

per's methodological individualism. The Open Society and Its Enemies is

a unrelenting critique of the 'logic of the framework' which Popper found

in the sociologies of Plato, Hegel and Marx. In political terms, raising 'the

state' [Plato and Hegel] or 'the working class' [Marx] above individuals
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Richard A. Wilson

inevitably resulted in Lenin's maxim, 'you have to break a few egg

make an omelet'.25 Popper exhorts us not to treat humans as pawn

to reduce human agency to structure. Despite his distrust of metaph

Popper slips into a practically Kantian defense of the individual at times.

Including interpretation in the account of Srebrenica makes genocide

than just the logical outcome of the idea of a Greater Serbia, and it r

genocide a human tragedy lived through by actual persons.

Finally, there are good political reasons to engage in historical i

terpretation since only in that way can defenders of openness in so

confront the nationalists on their own grounds. Post-authoritarian c

are not only about dispensing impartial justice for individuals, the

challenge the lies and distortions of the past and thereby marginaliz

claims of nationalists and other advocates of organic communities.

alists of various stripes all make their ideological arguments on hist

grounds, and so their defeat must in part be achieved through refere

history. In this way, the ICTY and ICTR do not just demonstrate to B

ans and Serbs and Hutus and Tutsis what proper liberal justice looks

but they also confront nationalist justifications of violence by refer

to history. I realize that this is a hopeful and rather optimistic argum

the ICTY is unpopular in Belgrade, and many Serbs are clearly in d

over the genocide committed by the VRS in Srebrenica. Serbs were

the only aggressors in Bosnia, but they were the main aggressors, an
day they and their politicians will face up to what was done in their

International criminal law can play a vital role in the lifting of a re

of denial that is necessary for democracy to take hold, and as a prec

we can point to General Pinochet's political demise in Chile from 19

1998. In those seven years, Pinochet went from an impregnable defe

of the nation to a disgraced relic of history. As this paper goes to p

Slobodan Milosevic is going down the same dishonorable route.

25 See Popper 1966:160.

26 Popper 1966:165
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