WAR CRIMES:  ALL’S NOT FAIR – David Binder, April 1996


By David Binder
Legal Times
April 22, 1996


For fair use only
Published under the provision of
U.S. Code, Title 17, section 107.


“All’s fair in love and war,” the venerable English saw tells us and, looking at the performance of the international tribunal in The Hague, it could be updated to “All’s fair in love and war crimes prosecutions.” 

Lopsidedness persisted for more than two years as the tribunal dealing with the Bosnia conflict indicted more and more Serbs on allegations of mass murder, but seemed to be uninterested in identical crimes by Croats or Bosnian Muslims in the three-sided civil war. Although this has been redressed somewhat (at this writing, 57 suspects have been indicted: 46 Serbs, eight Croats, and three Muslims) the imbalance continues, and the impression remains that The Hague method may be the judicial equivalent of “shoot first, ask questions later” — that is, “indict now, investigate later.” 

This impression hardened through the seizure and arrest of a general and a colonel of the Bosnian Serb army earlier this year by the forces of the Muslim-led government of Sarajevo, and through the ex post facto endorsement of this action by Richard J. Goldstone, the South African judge who is the outgoing chief prosecutor of the tribunal. 

Under considerable pressure from the United States, the Muslims handed the two Serbs over to NATO, which swiftly delivered them to Mr. Goldstone’s custody. He indicted General Djordje Djukic, the chief logistics officer, on February 29, on allegations that he took part in the siege of Sarajevo. His fellow prisoner, Colonel Aleksa Krsmanovic, though unindicted, was not set free, but was returned April 3 to the very people in Sarajevo who had seized him — Serbs say “kidnapped” — in the first place, for “further investigation.” 

By extrapolation, this seemed to posit the Muslim government as a police force empowered to seize as a potential war criminal any Serb who ever put on a uniform in the last four years. The Djukic-Krsmanovic seizure has already proven to be a dangerous precedent that could be employed in retaliatory fashion by Bosnian Serbs against Muslims. 

For a time the Muslim-Goldstone actions stalled further implementation of the peace accords agreed in Dayton and signed in Paris last year because the irate Bosnian Serbs simply broke off talks with the peacemakers. Even the U.S. government, the chief advocate of the Bosnian Muslim cause for the last four years, was displeased with this sequence of events which called into question the purpose of the Dayton-Paris accords: Was it to bring peace to the ethnically jumbled and now almost hopelessly hostile mountains and valleys of Bosnia and Hercegovina? Or was it an instrument principally for prosecuting war criminals, mainly Serbs? 


The tribunal at The Hague has to be the strangest court in the world. It has no power to enforce an order to arrest suspects. It has limited powers to investigate alleged crimes on site and a doubtful capacity to conduct fair trials. It lacks adequate funding and it has had to change chief prosecutors just as the first trials get under way. 

There is no comparable institution in the short history of international law. Nuremburg, after all, was created by the victorious powers of World War II to prosecute the Nazi losers. 

Rather, The Hague tribunal is primarily a political creation, pushed upon the international community by a nervous Clinton administration in May 1993, with Madeleine Albright in the lead at the United Nations, as a fig leaf to cover up the deliberately adopted impotence of the United States toward the Bosnian conflict at that time. 

The court was established by the United Nations Security Council under Chapter 7, the organization’s vague, all-encompassing instrument for dealing with any casus belli. This alone was unusual. In classical terms, it should have been established by convention in the General Assembly (with now more than 170 members), which would have then required accession by treaty ratification of each member. But the United States was, as usual, in a hurry and it was decided to sidestep such niceties. 

Then, with a powerful — some would say predominant — injection of American funding, manpower, and technology, the court adopted rules that would not be tolerated in the United States. The accused has no right to confront his accuser. That means accusers may remain anonymous and, as the American Bar Association has noted in a critique, immune from cross-examination. In short, contrary to the American system of justice, the accused, whether Serb, Croat, or Muslim, is held guilty until proven innocent. 

Nor are the rules of evidence even spelled out. 

Its initial practice showed that the tribunal was virtually incapable of prosecuting Dusan Tadic, the first and, for a long time, the only (Serbian) defendant in its hands, because the interpreter hired by the court was incomprehensible. 

Goldstone has been described by a senior U.N. official as “in equal measure political and judicial.” His recent activities would seem to bear out the political side of that analysis. He lobbied in the press and on television in Washington, New York, and Brussels for more money and more time, threatening to quit over the former and hinting that he would like to stay on, in the limelight of The Hague, if people really wanted him. 

In January he complained bitterly that he had to beg for alms every three months — $7.6 million in alms — to keep the 282-member Hague operation going. “No criminal justice organization should be dependent on handouts,” he declared. Mr. Goldstone has since been replaced by Louise Arbour, a judge from Ontario, Canada. The senior U.N. official expressed the hope that “his successor might be more judicial and less political.” 

So what are the prospects for prosecutions now, especially after Mr. Goldstone and others have declared that their investigations and indictments would be carried up the line of command to the very tops of the Balkan war crime gangs? 

We know they have done that with General Ratko Mladic and with Dr. Radovan Karadzic on the basis of their responsibility for alleged massacres of Muslims around Srebrenica last July. (Karadzic has told me and I guess others that he is prepared to go to The Hague and face the music.) 

But those were easy, the Republic of the Serbians and its leaders being the pariahs the so-called civilized world has made them. As for apprehending them, Lt. Gen. Patrick Hughes of the Defense Intelligence Agency predicted in March that “the U.S. element of IFOR [implementation force] will do that when the time comes.” A few days later John Shalikashvili, chairman of the Joint Chiefs of Staff, said he was “absolutely” opposed to such an operation. 

Concerning Srebrenica, the tribunal has been all over the place with its allegations of Muslim massacre victims, ranging from 8,000 down to 3,000. Characteristically, in early April, John Gerns, its representative on the scene, had plenty to say as teams of investigators probed possible massacre sites around Srebrenica and nothing to say when he went to a mass grave site in Mrkonjic Grad where the corpses of 181 Serbs massacred by Croats last summer had just been exhumed. The press also continues to be selective, rushing almost like ghouls to sites where Muslims were killed, but studiously ignoring those of murdered Serbs. 

But, what about Slobodan Milosevic or Franjo Tudjman or even the Bosnian Muslim leader, Alija Izetbegovic? 

If Bill Clinton was shaking hands with these men in Paris and Ambassador Richard Holbrooke changed from calling Milosevic a “Communist thug” a year ago to the Prince of Peace today, you can bet your bottom dinar that this tribunal is not going to be prosecuting them. 

Nor is it likely that either Belgrade or Zagreb is going to deliver many of the most prominent indicted men to that spiffy former insurance company building in The Hague. 

For that matter, not even the funding of the tribunal is certain, for all the moralistic bombast of the Clintons, Albrights, and Holbrookes, especially in a budget-conscious election year in America. 

Moreover, there is a debate under way in the United States about whether The Hague tribunal might set a dangerous precedent for creation of a permanent international criminal justice system, posing the issue of infringement on U.S. sovereignty. The argument pits conservatives against liberals (personified by the World Federalists, who have long lobbied for such a global criminal justice institution). That debate is not likely to be settled in favor of the Goldstones of this world, unless Ambassador Albright prevails with the idea that, as a permanent Security Council member, the United States could simply veto any procedures against Americans charged with war crimes — a kind of “not in my backyard” on a global level. 

      David Binder is a correspondent at The New York Times,

      where he has covered Balkan affairs since 1963.

      Legal Times is an affiliate publication of Court TV.

      Copyright ) 1996, American Lawyer Media