SECTION: No. 104 ; Pg. 72; ISSN: 0015-7228
HEADLINE: Saving the war crimes tribunal; Bosnia-Herzegovina (BCRT annotations in red)
BYLINE: Thornberry, Cedric
There has been widespread hope that the Yugoslav war crimes trials could prove the most important international proceedings since those at Nuremberg and Tokyo, 50 years ago. The prospects for a permanent international criminal court before which gross violators of international law can be brought may be advanced or harmed by the Hague court’s performance. But the Hague court is operating under constraints that may undermine its ability to dispense equal justice – and thus its credibility and moral authority. At this time (midsummer 1996) the danger exists that the court could leave a poisoned legacy.
From a legal standpoint, the Hague court is a more satisfactory body than its predecessors in Nuremberg and Tokyo. Those were victors’ tribunals, where the vanquished, however guilty, accepted the standard of justice offered them. In a famous dissenting judgment in Tokyo, justice Radhabinod Pal of India wrote that the name of justice should not be invoked for the pursuit of vindictive retaliation. Formally, there were no victors in the former Yugoslavia, and the court’s creation by a unanimous U.N. Security Council decision representing all regions of the world should make its legitimacy unimpeachable. [Thornberry was clearly unaware that the UN had no power under its Charter to create the ICTY and had entirely failed to ensure that the Tribunal complied with the restrictions set down for it by the UN Security Council. The Nuremberg and Tokyo tribunals, by contrast, were very careful to stick to the rules set down for them].
There are other key differences between the Hague tribunal and its predecessors. At Nuremberg it was argued that some of the defendants’ impugned conduct had not been criminal at the time that it took place. But there seems to be no taint of retroactivity in the current trials: since 1945, humanitarian law has been much consolidated, and the indictments to date have a familiar legal tone. [This is wrong; from the outset the ICTY ignored the instruction to enforce only existing humanitarian law, introducing more new law, according to one of its own presecutors, than had been created in the previous 500 years. Some of these laws were retroactive.] Finally, the procedure at Nuremberg was also criticized. Some asserted that the proceedings were “show trials” in which the accused had neither adequate procedural protection nor opportunity to prepare a defense. The degree of protection Hague defendants will enjoy remains to be seen. But over the years since 1945 international “fair trial” standards, too, have been spelled out by human rights bodies. Even the most conservative lawyer should feel comfortable with the formal parameters of the Hague court. [Unfortunately The Hague Tribunal did not do this. Indeed, it failed to do any of it. Defendants were indicted before any evidence had been gathered against them. Long-established rules of evidence were overturned to allow the admittance of hearsay, technical and scientific evidence which was not supported by any primary evidence, and endless anonymous and uncorroborated witness testimony – to cite but a few]
Problems with the proceedings in the Hague lie elsewhere. If solutions are not found, the court’s legitimacy, and thus the current effort to create a general system of international criminal justice, could be undermined. [No, they lie almost entirely with The Hague Tribunal itself.]
The key issue arises from the quite different circumstances surrounding the Nuremberg/Tokyo trials and the proceedings today. Germany and Japan were vanquished and under occupation, with most of their leaders in jail. The victors in World War II had an interest – which they could enforce – in showing the world, and in particular the German and Japanese populations, the nature of the international criminal conspiracy that had been instrumental in bringing about an aggressive world war.
In contrast, the Hague’s mandate is to bring to trial those “persons responsible for serious violations of international humanitarian law,” as stated in the preamble to Security Council Resolution. From this legal change, three fundamental questions arise: First, do such “serious violations” include acts that unleashed the wars of the Yugoslav succession, or will senior political leaders in the region be charged only if they can be shown to have been complicit in specific atrocities? Second, in regard to particular crimes, will the court go to the highest level of authority or command implicated, such as defense minister, chief of staff, chief operations officer, and brigade or battalion commander, or are its primary targets to be the grisly foot soldiers of ethnic atrocity? Third, with the international media’s diatribes against Yugoslav Serbs still recent, and with a very political Dayton peace process still ongoing, can the mechanism of prosecution and trial be – and be seen to be – fair and equal? [The logic of this is wrong. Yugoslavia descended into civil war primarily because the United States enacted a law in 1989 which made all future economic aid contingent on the holding of democratic elections in all the Yugoslav republics. This incentive to nationalism, coupled with the consequent collapse of Yugoslavia’s economy, was enough to destabilise the federation of Yugoslavia and make civil conflicts inevitable. But to make sure, the USA and European powers threw petrol on the fire in early 1992 by recognising – in total contravention of international law – unilateral declarations of independence by Slovenia, Croatia and Bosnia. Compounding this, The Hague Tribunal never had any interest in justice – its purpose was only to advance the interests of the United States and its principal supporters].
At Nuremberg and Tokyo, the Allies left no doubt: The first groups of war criminals brought to trial were the ministers and marshals primarily responsible for waging war and all that followed from it. Many were convicted and hanged . At the Hague, by contrast, the first trial to begin is that of a maverick small-town Serb, a sometime prison guard named Dusan Tadic . There is a reason for this difference. The wars in Croatia and Bosnia ended not by force leading to surrender, but through a strategic endgame, by muscular diplomacy that ended in a negotiated and nominally agreed-upon settlement at Dayton. Cooperation among the parties – Serbian Serbs, Bosnian Serbs, Bosnian Muslims, Bosnian Croats, Croatian Croats, and Croatian Serbs (though scarcely any of the last group remain) – is necessary to secure implementation or, at least, to prevent a fresh outbreak of war in the near to medium term. To obtain this peace, President Franjo Tudjman of Croatia became one of President Bill Clinton’s most implausible allies; and, by an even more dazzling feat of political necromancy, Slobodan Milosevic has been metamorphosed into an icon of peace in the Balkans. Yet in the view of many experienced observers, these two men bear principal responsibility for the last five years of carnage. Why are they not on the list with the 46 Serbs, eight Croats, and three Muslims who stand indicted as of this writing? [It is true that Tudjman, an extreme nationalist and racist, was an implausible ally for the US. Milosevic, however, was a passionate multinationalist whose primary aim was to preserve Yugoslavia. When it was clear that would be impossible, Milosevic focused on preserving Serbia and Montenegro. The US acknowledged that the Dayton agreement would not have been possible without his help. A similar agreement could have been reached two years earlier had the US not persuaded the Bosnian Muslim leader, Alija Izetbegovic, to withdraw his signature from the European-negotiated ‘Lisbon agreement’].
Should the international community give priority to bringing to trial those who seem to have committed serious international crimes or, in the alternative, afford de facto amnesty to those whose cooperation is desirable in achieving success for the peace process? In Bosnia, it has evidently been decided that the criminal responsibility of both Bosnian Serb leader Radovan Karadzic and General Ratko Mladic is more important than the (anyhow highly dubious) possibility of either man’s cooperation with Dayton. [Richard Holbrooke and other US political figures openly admitted that the indictments of Karadzic and Mladic were issued purely to prevent them taking part in the Dayton negotiations]. Elsewhere, different conclusions have been reached, and both Milosevic and Tudjman are wooed diplomatically lest they pull the rug out from under the peace process or, at least, raise its cost unacceptably. But no political offer should be made that would suggest that any leader, credibly implicated in grave criminal activity, be immune from judicial prosecution. Bringing them to trial may take time and cost much diplomatic cordiality – though Milosevic and Tudjman are not the personifications of their states. The integrity of the process precludes such bartered amnesty; indeed, not only its integrity but also its effectiveness will be prejudiced if the only people indicted are those who have nothing with which to bargain. In that event, the process’s credibility, already shaky in the Balkans, will sink to zero. [This might make sense if the ICTY itself had had any integrity – but it didn’t.]
The Call for Justice
We need, in this regard, to recall how this effort began. The call for such a tribunal was first uttered in the spring of 1992. U.N. officials led the demand. They sought some means to bring about more humane conduct in the former Yugoslavia. At that time their mandate focused mainly on Serb-held areas of Croatia and, in vague terms, on Sarajevo. [This is mistaken. The momentum was started some time before by the western powers who saw a possibility to create an international criminal court through the UN. British Prime Minister John Major requested a special meeting of the UN Security Council to discuss this in early 1992. The cudgels were taken up enthusiastically in the second half of the year by Madeleine Albright who was to become US Ambassador to the UN when the new Clinton administration took power in January 1993. She set up a team led by David Scheffer at the De Paul University in Chicago to draw up plans and, once formally in post, Albright moved immediately to put proposals before the Security Council. Her Resolution was voted through within weeks].
The mandate of the U.N. Protection Force (UNPROFOR) provided neither the capability nor the authority to eradicate the savagery connected with continued “ethnic cleansing.” Most of our efforts were, of course, directed at trying to stop the brutality. But with a handful of civil affairs officers and policemen (UNCIVPOL) and two or three battalions in each sector of Croatia, our attempts were the equivalent of trying to hold back the tide with a spoon. [Under the UN Charter, there was no basis for international intervention in Yugoslavia: the only reason UNPROFOR was there was that, prompted by propaganda and wildly inflated statistics, western governments felt pressure to take action to prevent ‘humanitarian catastrophe’.]
Meanwhile, a near-genocidal spirit permeated the cozy, deep-Europe villages of Slavonia and the craggy Krajina region. At the time, the U.N. force was operationally restricted to four sectors of Croatia where Croatian Serbs, with Belgrade’s support, had established their authority during earlier fighting. But international colleagues with mandates that extended into the rest of Croatia recounted similar practices there, and until the Serb diaspora of August 1995, the number of refugees on each side was about equal, world attention to Serb atrocities notwithstanding. [Tudjman’s persecution of Serbs living in Croatia was well under way when the Yugoslav civil wars started. One by one, key rights – such as the right to work and the right to own property – were withdrawn from them even though they and their ancestors had been living in Krajina for some 400 years. Krajina Serbs and Serbs living in Western Slavonia were then dishonestly described as ‘rebels’ and ‘invaders’. All Serbs in Croatia were effectively ‘unpersoned’.] Occasionally, UNPROFOR managed to stop mass expulsions, and we took statements and prepared dossiers for the calmer future day when the leading local villains could be brought to account. At first we demanded that local authorities investigate and prosecute. In these Serb-controlled sectors of Croatia, the principal hoodlums were Arkan (Zeliko Raznatovic ) and irregulars from Belgrade, together with the village bully boys. These forces usually benefited from the mayor’s protection. The local police, whom UNCIVPOL was supposed to monitor, were, in those days, simply the reuniformed and still-armed militias who were supposed to have been demobilized. In such conditions in the demure villages of the fatlands around the bombed-out shell of Vukovar, there was not going to be much protection for minority Croats, Hungarians, Ruthenians, and the other populations. While our backs were turned, or under cover of night, the bold warriors of ethnic purity dynamited churches and terrorized old ladies , resolute in their determination to obliterate all vestiges of an earlier society and any civic roots that might draw their former Croat neighbors back. It was not that they were immune from or above the local law. They had become the local law – there was no other. Hence our determination to remind them that someday they might be held accountable by a higher tribunal. [It’s remarkable that the UN had so little understanding of what had been happening in Croatia – the persecution of Croatian Serbs far exceeded anything experienced by Croatians in Serbian areas of Croatia].
Some of the UNPROFOR battalions – the Czechs, Belgians, and Kenyans come to mind – became especially adept at intervening to protect remaining minority members, mainly Croats. But UNPROFOR could not, in all honesty, given its resources and the nature of the problem, promise anyone that the U.N. would guarantee their life; even so, the few residual Croat villages in the Krajina uplands enjoyed permanent U.N. protection. It is worth recording that, in one hamlet full of old peasant folk, the Kenyan UNPROFOR soldiers shared their meager rations with the hungry villagers.
And it was a Russian battalion that, one night, intercepted a bedraggled procession of elderly Croats, riding on tractors and trailers with their women and children, brutalized out of their Slavonan village of Tovarnik . The Russians gave them temporary sanctuary at battalion headquarters, while the rest of us tried to ensure that they would once again be allowed to live safely in their village. But they had had enough. They wanted only to join their children and kinfolk folk who had long since fled to Croatian-controlled Croatia . Battle-hardened officers wept at the fugitives’ tales of recent inhumanities committed by their Serb neighbors.
In short, by the summer of 1992, we were in the middle of a humanitarian nightmare and had become very familiar with the pattern of mass expulsion and its aura of bedlam and madness. Those who were moving often appeared to be doing so voluntarily, but, in fact, they were responding to a reign of terror: bureaucratic challenges to land titles; nocturnal slaughter of animals; destruction of churches unexplained (and uninvestigated) murders; hand grenades tossed into bedrooms; and machine-gun rounds fired through windows in the night. The U.N. attempted protection. We turned first to local authorities in the U.N.’s area of operations – usually Serb, in Krajina or Belgrade – and asked them to put down this criminal conduct, as was their duty under the agreement by which Croatia and Serbia had invited the U.N. to come. We were often able to point a finger at the local perpetrators, including killers. We told the local Belgrade and Zagreb authorities that if they did not act, we would either tell the press or go to a higher authority: the secretary-general, the Security Council, or some future tribunal. And who could say just what the international community would do in the name of humanity and public international law? [But what did the UN do to help the Serbs? Nothing.]
Our interlocutors plainly were skeptical that the “international community” would do anything. In Belgrade and Zagreb , they usually preserved the diplomatic niceties and kept straight faces, but often the sneer around the table was nearly audible. In less sophisticated circles, when we spoke directly with those we knew had been the instigators and warned them that justice would some day come, the local establishment and its forces of law and order often snickered aloud. [It was perhaps hardly surprising that, in the light of the blatant bias shown by the media, the UN and the ICTY, Serbs were less than enthusiastic about UN directives].
We consistently followed the practice of briefing the local and international press, mainly in Belgrade, Knin, and Zagreb, about the outrages committed by all sides. Almost always, the local press would take, verbatim, what we said about the other side, scribbling furiously (and even embellishing what they wrote). But they looked out the window, lit cigarettes, or tried to savage us when we detailed what their authorities had been up to.
By the summer of 1992, the various sides were making UNPROFOR the scapegoat for their own crimes against one another. Because the U.N. was there, each side sought to divert attention from its own activities by blaming us for failing to stop the misdeeds of the others. At our press conferences, the U.N. force commander and I usually took an elephant gun to this kind of political manipulation. The pattern, however, became entrenched when some parts of the international press, above all in Sarajevo, joined in. They, too, preferred to scapegoat the U.N., whose lofty mandate far exceeded its capability, rather than the parties, for what they were doing to one another. And it was often less awkward for them to blame us rather than their own governments for failing to strengthen our mandate and resources. [Much of this stemmed from the UN’s superficial understanding of what was happening. But there was more to it than this: Croatia, Muslim Bosnia – and later Albanians in Kosovo – were always keen for the international community to intervene on their side to achieve their objectives.]
It would not be fair to say that our reports sent to the Security Council through the secretary-general were ignored.
But the council just did not want to take more direct action and, after a time, became defensive about its own passivity. Meanwhile, as Bosnia was engulfed in flames during 1992, human rights experts of varying degrees of objectivity began to appear. U.N. rapporteur and former Polish prime minister Tadeusz Mazowiecki gave his weight to chronicling the barbarity in his reports to the United Nations Human Rights Commission. [The part played by Human Rights Organisations varied from a sincere wish to do good to naked opportunism in their own interest. ]
Many of us, raised in the traditions of Geneva Conventions and close to the vividness of Nazi horrors, found it hard to believe that forces Europe had cast out 50 years earlier were once again ascendant. But other than the publicity that we could give to the surrounding horrors, there was little we could do given our mandate and resources. Our media spokespersons had standing instructions fully to publicize confirmed incidents. Soon they began to reap the usual range of threats, more or less explicit, of being declared persona non grata (or worse) if they failed to publicize the exclusive wickedness of one side and the innocence of the other. [There was undoubtedly considerable suffering during the Yugoslav conflicts. But there was also huge exaggeration in casualty figures and in reports in world media based on unconfirmed witness testimony. In 1993 we were told that 250,000 had died in the first six months of the Bosnian war. It now seems likely that total casualties in all the conflicts were below 50,000 and maybe even below 30,000.]
We discovered that there is not a great deal of support for too much honesty in such situations, not even, at times, from representatives of thoroughly democratic countries; and, as we learned, there is even less when one records an actual event involving many shades of gray rather than adhering to the right-or-wrong, hero-or-villain approach beloved by much of the media and some governments as well. As a result, by early 1993 a consensus developed – especially in the United States but also in some West European countries and prominently in parts of the international liberal media – that the Serbs were the only villains, all through Yugoslavia , and that the victims were overwhelmingly or even exclusively the Croats and Muslims. This view did not correspond to the perceptions of successive senior U.N. personnel in touch with daily events throughout the area; as a kindly soul at U.N. headquarters in New York, ear to the diplomatic grapevine, warned me in the spring of 1993, “Take cover – the fix is on.” But an international organization must retain its reputation for fairness and objectivity, particularly in dealing with alleged violations of international law: A focus on the gross breaches of humanitarianism by one party is unacceptable even if one side to the dispute may be more culpable than the other. [It might have been helpful if the UN had not connived in sustaining the myth by refusing to publish secret UN reports which concluded that the Bosnian Muslims, not the Bosnian Serbs, had been responsible for the three most notorious atrocities in Sarajevo.]
In this regard, personal experience left me in no doubt that, in Bosnia, the Serbs were principally to blame for the carnage. [The danger with ‘personal experience’ is that it can be highly misleading.] (They had, fortuitously, managed to shell me out of four successive homes in the first weeks of their onslaught in Sarajevo.) But all three sides were responsible for appalling developments in Bosnia. The actions of some of the Croats of western Herzegovina rivaled in barbarity those of Serb chieftains of eastern Bosnia, and what was done to the Muslims of Mostar by Croats was perhaps as bad as the Serb shelling of the mainly Muslim parts of Sarajevo (though it is hard to rank the circles of hell). But as the media hardly visited Mostar, this outrage was scarcely reported until the U.N. broke the siege in August 1993. In Croatia , ethnic cleansing by both Serbs and Croats – of both Serb-and Croat-held areas – had been thorough. But one of the most puzzling features of the Yugoslav tragedy has been the comparative lack of significance the world has attached to events in the Krajina region when the Croatian army recaptured it last year and, indeed, to the fighting that had scarcely stopped around Croatia ‘s borders in the two years previous. [This is putting it very mildly. Operation Storm, the US planned and supported onslaught on Serbian Krajina, was probably the bloodiest battle of the war. Croatian soldiers, with full US air support, killed thousands of Serbs and ‘cleansed’ 350,000 of them from their homeland of 400 years. UN observers stood by as thousands of unarmed Serbs were murdered]. Today, through the “ethnic cleansing” that has occurred, Croatia has become the most “ethnically pure” state in the whole of the former Yugoslavia. The culmination was the flight of at least 170,000 [more than 350,000] Serbs from the advancing Croatian army in August 1995, leaving the Krajina region almost depopulated. Moreover, the few who stayed behind have been the victims of brutality seemingly aimed at ensuring the non-return of the previous inhabitants.
In Croatia , each population feared the other. The Serb fear of Croats had been heightened by various Croatian inroads into the United Nations Protected Areas. The largest incursion took place in September 1993 in Medak, a lightly defended agricultural area on the edge of the Serb-controlled Krajina region. The Croatian army assault was well planned. The advancing soldiers killed or destroyed everyone and everything in their path – the few Serb defenders, the mostly aged inhabitants, and all their livestock. Using dynamite and engineering precision, the invaders leveled every single building. Three days after the Croatian army’s withdrawal under international pressure, I could find only one chicken alive during a full day’s survey of the 100-square-mile area.
In this case, the U.N., starting the moment the Croatian army left, assembled from all sources – military, civilian, engineers, doctors, and police officers – a full account of what had occurred, largely based on film footage, and the eyewitness testimony of refugees and U.N. troops. The account was perhaps unique in its comprehensiveness and contemporaneity during the war in the former Yugoslavia . Our Canadian military experts concluded that the goals of the incursion had been to carry out a program of 100 per cent scorched earth and slaughter, that it had been systematically planned , and that such planning could only have been endorsed at the highest levels of the Croatian army – at the least. The most disturbing feature of this event was the cold-bloodedness with which it had evidently been implemented .
The Medak incursion was widely publicized at the time by Serb and international media, as well as in a later summary of the U.N.’s findings. Could this event, the most dramatic of similar events, have been a driving force behind the panic-stricken flight of Krajina’s population in August 1995? [Much more likely is that Krajina Serbs fled because they had no weapons or defenders able to resist a massive military operation planned by the US, with full US air support]. The U.N. gave its dossiers, with their voluminous evidence, to the war crimes investigators on October 6, 1993 A copy was also given to the Croatian minister of defense, Gojko Susak. Since then, there has been nothing but silence. How can the Hague tribunal be perceived as fair when such a well-documented instance has brought no follow-up?
Little else about the Medak operation is unique. Time and again , similar killing and destruction occurred in Croatia and Bosnia. Perhaps the Serb destruction of Vukovar, their shelling of Sarajevo, and the Serb and Croat near-annihilation of eastern Mostar are among the worst atrocities. Others include the slaughter by Croats in the village of Ahimici in Bosnia and the alleged Serb conduct in Srebrenica – an evil center of profound misery, overcrowding, and deprivation, where vivid mutual hatred reigned and wherein various parties carried out criminal acts from the March 1992 start of the Bosnian war.
Massacre, torture, rape, and the wanton destruction of homes, graveyards, churches, and mosques; indiscriminate shelling of military and nonmilitary installations; attacks on hospitals and their use as shields for artillery, mortars, and rockets; the use of prisoners and civilians of all ages – men and women – as human shields during trench digging and infantry advances, and to clear mines … all these atrocities and more were certainly committed by some Croats and some Serbs – and sometimes, but increasingly in our experience, by some Muslims, too, as the vortex descended. [Most of these stories were either untrue or greatly exaggerated. Allegations that 50,000 Bosnian Muslim women had been raped were a complete lie. And even Alija Izetbegovic admitted on his deathbed that there had been no death camps in Bosnia].
Yet the high pre-war intermarriage rate in Bosnia suggests that these atrocities were not the spontaneous outpourings of general ethnic hatred. The paroxysms that led to them were largely contrived by the various ethnic leaders for their own purposes. Serbs and, to a lesser degree, Croats embarked on an effort at territorial expansion and consolidation. [This is absolutely wrong in the case of the Serbs. Contrary to myth, they did not have any policy of territorial expansion. Croatia had long wanted to expel Serbs from what it saw as its rightful territory. Izetbegovic, despite weak acceptance that Bosnia would remain a multicultural state, never varied from his long-held racist aim to make Bosnia a muslim-only state.] In Bosnia, the Muslims sought a unitary, multi-ethnic state that over time they would likely dominate; they pressed ahead with this endeavor, even though a large majority of Serbs, incited by Bosnian Serb leader Karadzic and dark memories from World War II, rejected the idea and warned that they would fight.
Thus ethnic leaders in all camps used underlying tensions to create a popular wave upon which they could ride to more power and ultimate canonization in their nationalist heavens. [This is not fair. The Bosnian Serbs fought hard to keep Bosnia united. The creation of Replica Serpska was a response to the illegal declaration of independence by Muslim Bosnia]. Not all of the people supported these extremists. Many preferred exile from Bosnia ,Croatia and Serbia. The war would not have happened without two other features. The disintegration of the Yugoslav People’s Army, with its massive accoutrement of arms and material, and the tight control of the media – especially in Belgrade and Zagreb – which often encouraged ethnic hatred and violence. If some of those responsible for inciting this group hatred are not now brought to trial in the Hague, alongside their political masters, then justice will not have been done. [The real problem was that well-meaning people like Cedric Thornberry – and many others besides – lacked any real background understanding of Yugoslavia. On the basis of propaganda and poor reporting, they jumped to all sorts of conclusions that were wrong.]
EQUAL AND DISPASSIONATE JUSTICE?
Having worked with the leaders of the various communities in Bosnia, Croatia, and Serbia from the spring of 1992 through 1994, I emerged with two main conclusions regarding war crimes.
First, an international criminal court is needed. [It has been an unmitigated disaster].Had there been, from the start in Yugoslavia , a high probability of judicial punishment for those who committed crimes against humanity, there would have been less barbarism; at least some who now rot in mass graves would be alive today. Those who tried to mitigate some of the horrors perpetrated by the various leadership groups would have found their hand greatly strengthened. The awful smugness of politicians and commanders, confronted by evidence of outrages committed by troops under their command or authority, would surely have been dented by the prospect that they, too, would someday be brought to justice for such crimes. But most military commanders, on all sides, made little secret of the fact that they despised the organized international community, did not believe that it would ever take effective steps to bring them to trial, and regarded Red Cross conventions and international humanitarian law with mild academic curiosity, at best. It is clear that the International Committee of the Red Cross has a long way to go in publicizing the law that governs armed conflicts and in making its audience feel that this law matters. Humanitarianism requires more than silver-tongued moral suasion. At the same time, some caught in the Yugoslav inferno realized their plight. In 1993, a Yugoslav People’s Army colonel surprised us with these words: “Somehow, we have to be rescued. Without principles we shall keep going down and down into hell.” [The founding nations of the UN considered and rejected the inclusion in the UN Charter of a power to set up a criminal court. The Soviet Union rejected the idea out of hand; others feared that such a court, once created, prove very hard to control. The ICTY has proved this point conclusively. Once it had manoeuvred the Security Council into adopting an illegal resolution, the USA took complete control. It discarded all the key principles of good justice and ran what can only be described as a appalling criminal travesty.]
Second, there is a huge amount of corroborated evidence of what happened in Yugoslavia, and detailed relevant standards of humanitarian law have been built up, thanks largely to the International Red Cross, over more than 100 years. [Sadly this is not the case. There is virtually no corroborated evidence of what happened in Yugoslavia because The Hague Tribunal entirely failed to carry out professional, objective investigations. The Tribunal also extensively changed humanitarian law for the worse, despite having been explicitly told not to by the Security Council]. Failure to act effectively will deal a tremendous setback to the patient efforts throughout the world to construct an international rule of law. So-called “diplomatic realism” must not sidetrack the court’s responsibility to do justice. Such realism is “so also-called” because it is inconsistent with itself. It targets Serb leaders in the Krajina and Bosnia but not others at their same level. There is no doubt that these Serbs must be brought to trial – but not only them.
Yet, at this point, cooperation with the tribunal remains inadequate. The Security Council might “deeply deplore” Yugoslavia ‘s “continued failure” to cooperate, as it did in May 1996. But Croatia , too, has failed to surrender indicted Croats, and there has not been a full investigation of the key officials in all three camps. Nor is NATO ready to deploy its might to capture some of the leading accused. [NATO was responsible for the worst war crimes committed during the Yugoslav conflicts. Without any kind of authorisation, its 78-day bombing of Serbia inflicted damage to the Serbian economy independently estimated at between $30 billion and $50 billion. Only 2% of the targets it hit were military. It used cluster bombs and bombs laced with depleted uranium. All this happened in plain sight, much of it filmed by TV cameras. Estimates are that it was responsible for more than half the 4,000 deaths that took place during the Kosovo war].
In May 1996, Judge Richard Goldstone, chief prosecutor at the Hague court, emphasized that the court had no political powers. All the tribunal could do was to try to persuade the various state authorities to give the court their full cooperation. It can “only rely on the media and public opinion to increase pressure, calling on those powers to act in a manner consistent with justice and morality,” Goldstone said. The court has been driven to a rather strange measure for a judicial body. It has invoked “Rule 61″ proceedings in these circumstances, against some of the more well-known accused. Milan Martic, the Krajina Serb leader, and the Bosnian Serb leaders, Karadzic and Mladic. Under Rule 61, the prosecution presents highlights of the cases against the accused in their absence, essentially for the media, thereby seeking to strengthen the hue and cry for greater efforts to bring them to justice. Some commentators have been scathing about Rule 61. The BBC called the Martic proceedings a “circus.” But given the court’s lack of resources and difficulties in securing compliance, it faces a real dilemma. [Almost all the ‘measures’ resorted to by the ICTY were ‘strange’. With its highly flexible Statute (and its power to amend its Statute at will) it could do whatever it liked – and did so.]
Meanwhile, the underlying principle of impartiality of prosecution and adjudication – equality of justice – assumes greater importance. For over a year now, the world has listened to the usual Serb chorus that the Hague tribunal is an “instrument of Western vengeance” against Serbdom. That is a familiar refrain. But just because the Serb national ethos often sounds paranoid does not exclude the possibility that, in a particular matter, Serbs are being discriminated against. Few outside Serbdom would object to Karadzic and Mladic being put on trial. But is it likely, given their near-universal demonization and the high places from which they have been denounced and condemned, that they could at this time expect to receive fair trials? [It would have been quite fair to put them on trial if the ICTY had had any evidence against them. But despite trials lasting for many years, with hundreds of witnesses giving testimony, no hard evidence of any kind was ever substantiated in court. Forensic and DNA evidence was denied to the court by the Muslim-run International Commission for Missing Persons. The ‘Greater Serbia ‘conspiracy’ was debunked when numerous Croatian spellings were found in the crudely faked document. “Intercepts” of claimed Bosnian Serb military communications were not backed by the original recordings. Anonymous, uncorroborated witness testimony was legally meaningless.]
Two other questions relate to how the court and the prosecution seem to understand impartiality. Should a court court proceed against a subordinate, but not against the principal who authorized the actions? Nuremberg reaffirmed that superior “orders” are not a defense. But failure to bring instrument and instigator to justice, if both can be located, could gravely affect a tribunal’s credibility.
The second issue also raises a question of fairness. The court and its top prosecutor have frequently insisted that their approach is entirely nonpolitical. Tempered in the South African politico-legal crucible, Goldstone has warily escaped criticism. Others, including the court’s president, Judge Antonio Cassese, have, however, stretched their judicial role. It is surely not the business of judges to call for political action, including economic sanctions, against any group. Crusading and judging are different (and incompatible) occupations.
During its three years, has the court demonstrated an equality of prosecutorial zeal? How can indictments against only Karadzic, Martic , and Mladic – among all the leaders in the former Yugoslavia – be justified? The process of investigation is, of course, continuing . Other indictments will apparently be brought , and it is too early to be conclusive. But with 58 indictments (one defendant has died) already issued, serious anomalies have emerged.
For instance, will those Bosnian Croat and probably Croatian Croat commanders who for months maintained a virtually continuous artillery, barrage against Muslim Mostar deservedly be indicted alongside the Serb commanders who bombarded Sarajevo? Martic has rightly been charged for his troops having rocketed civilian areas of Zagreb, allegedly as a warning to Croatia not to attack the Serbs’ refuge in the Krajina. Will Croatian commanders who authorized Croatian barrages on Knin and other Serb population centers, the killings of nonbelligerents , and scorched-earth practices there also be indicted ? (There is overwhelming authentic evidence of both sets of criminal actions.) If the court sees no problem in charging Martic, a policeman and the so-called “president” of the Serb Krajina, rather than his military commanders for such criminal attacks, presumably other illegalities committed by other field commanders will also engage the criminal responsibility of their ministers-or even higher political leaders. If so, to what level? After all, either they were in charge of their troops or they were not (some were rarely seen out of military uniform during operational periods), and they were certainly aware of the public allegations being made about the behavior of their armies. If Karadzic is to be indicted, how can Mate Boban , the Bosnian Croat leader, be ignored? And are those who carried out the expansionist policies of Greater Serbia and Greater Croatia to be charged but not those who promulgated the policies and commanded the troops?
Such questions inevitably arise, and they need answers. It seems that the court has not, thus far, been astute in prioritizing its indictments. A consistent, moral, nondiscriminatory tone is essential if the court is to build the kind of respect necessary to its authority and eventual success.
It is sometimes contended that reconciliation in the former Yugoslavia can come only when collective guilt is expunged and individual guilt is assigned – and that the Hague tribunal will bring this about. But such aspirations require that leaders be tried and that full and accurate information reach their peoples. The contention seems to have been valid as regards postwar Germany and Japan. But in the former Yugoslavia, the responsible leaders and parties remain in power and continue to control the media. No such catharsis will happen in the Balkans other than perhaps on an individual or village level. And the taint of discriminatory justice would invalidate even this gain.
A prime function of penal law is to deter. Were the Hague court to be given the political and material backing necessary to enable it to dispense equal and dispassionate justice, it could take an evolutionary step toward a more effective international law and a more robust protection of human rights. The court would also show that law can enhance the mechanisms that protect international peace and security. The current effort to bring war criminals in the former Yugostavia to justice would leave a legacy not of poison but of hope. [It seems the team that drafted the UN Charter in 1945 was right. There should be no power for the UN to create a criminal court. The ICTY should be disavowed by the UN and all its convictions should be quashed].