Corrupt \u201cJustice\u201d at the ICTY – by Andy Wilcoxson<\/b><\/p>\n
At a ceremony marking the 20th\u00a0Anniversary of the International Criminal Tribunal for the former Yugoslavia\u2019s (ICTY) establishment, Tribunal President Theodor Meron gave a speech about the Tribunal\u2019s \u201cprofound contributions to global efforts to battle impunity\u201d and the international community\u2019s \u201cresolve that there be no impunity for any individual, even the most senior political or military leader.\u201d[1]<\/a><\/p>\n In spite of Judge Meron\u2019s shameless boasting, NATO warplanes were allowed to attack civilians in Serbia with impunity in 1999. They attacked Radio-Television Serbia\u2019s Belgrade studios where 16 civilians were killed and a passenger train in Grdelica where another 14 civilians were killed.<\/p>\n The ICTY didn\u2019t charge anyone from NATO with a crime, even though it has prosecuted Serbian officers for similar offenses. Gen. Dragomir Milosevic was tried and convicted for, among other things, shelling the TV Sarajevo building and shooting at trams in Sarajevo. It stands to reason that if it\u2019s a war crime to attack a TV Station in Sarajevo, then it\u2019s a war crime to attack a TV station in Belgrade. If it\u2019s a war crime to shoot at a tram in Bosnia, then it\u2019s a war crime to bomb a commuter train in Serbia. The double standard is obvious.<\/p>\n The ICTY is a Political Tool and They Admit It<\/b><\/p>\n When reporters asked Lester Munson, Communications Director for the U.S. House of Representatives Committee on International Relations, if he was concerned that the Tribunal might attempt to prosecute NATO officers for attacking civilian targets in Serbia he told them: \u201cYou\u2019re more likely to see the UN building dismantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal.\u201d[2]<\/a><\/p>\n The ICTY likes to portray itself as an independent UN institution, but in reality it is the brainchild of the U.S. State Dept. and the CIA. Not surprisingly, the United States has used the Tribunal to advance its interests in the Balkans and government officials openly admit it.<\/p>\n In an interview with BBC Radio, former U.S. Assistant Secretary of State Richard Holbrooke said, \u201cWhen President Clinton brought me back to Washington to take over the Bosnia negotiations I realized that the War Crimes Tribunal was a huge valuable tool. We used it to keep the two most wanted war criminals in Europe \u2013 Karadzic and Mladic \u2013 out of the Dayton peace process and we used it to justify everything that followed.\u201d[3]<\/a><\/p>\n Holbrooke wasn\u2019t the only American official who saw the Tribunal as a \u201ctool\u201d for advancing American interests. James O\u2019Brien served as Clinton\u2019s special Presidential Envoy for the Balkans and he described the Tribunal as \u201ca very useful tool in bringing about a settlement.\u201d In his opinion, \u201cIt was a primary way to remove or, at least, undercut the legitimacy of people who would be obstacles to peace.\u201d[4]<\/a><\/p>\n Former U.S. Secretary of State Madeline Albright explained that \u201cwhen people were going to Dayton, the fact that Karadzic and Mladic didn\u2019t go to the talks was thanks to the existence of the War Crimes Tribunal.\u201d She described the economic sanctions and the War Crimes Tribunal as \u201cthe two issues that provide us the most leverage.\u201d[5]<\/a><\/p>\n In a speech at the U.S. Supreme Court, former ICTY President Gabrielle Kirk McDonald was generous in her praise for Ms. Albright. She said, \u201cWe benefited from the strong support of concerned governments and dedicated individuals such as Secretary Albright. As the permanent representative to the United Nations, she had worked with unceasing resolve to establish the Tribunal. Indeed, we often refer to her as the \u2018mother of the Tribunal\u2019.\u201d[6]<\/a><\/p>\n Former NATO spokesman Jamie Shea openly bragged to the media that \u201cNATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers.\u201d According to Shea, \u201cWithout NATO countries, there would be no International Court of Justice nor would there be any International Criminal Tribunal for the Former Yugoslavia, because NATO countries are in the forefront of those who have established these two tribunals, who fund these tribunals, and who support on a daily basis, their activities.\u201d[7]<\/a><\/p>\n The Tribunal\u2019s conflict of interest couldn\u2019t be more obvious. The United States and NATO were direct participants in the very conflicts where the Tribunal is adjudicating the facts. NATO bombed the Serbs.<\/p>\n A verdict from the ICTY has the same credibility and conflict of interest problems as a study on the health effects of smoking that\u2019s published by an institution that gets funding from the tobacco companies.<\/p>\n Documents recently declassified by the CIA show that the Tribunal began as a U.S. policy initiative. On 1 February 1993, the Director of the CIA circulated a memo that assessed how various countries would respond to \u201cUS policy options\u201d in the former Yugoslavia.<\/p>\n One of the policy options was to \u201cestablish a war crimes tribunal\u201d.\u00a0 According to the memo, Western Europeans would be supportive of the Tribunal, Moscow would oppose it, and \u201cMuslim states would approve a War Crimes Tribunal and publicizing Serbian atrocities. Even treatment of Bosnian transgressions, however, would be regarded as tilting in Belgrade\u2019s favor.\u201d[8]<\/a><\/p>\n Leaked Diplomatic Cables Expose the Tribunal\u2019s Cozy Relationship with the U.S. State Dept.<\/b><\/p>\n U.S. State Dept. cables leaked to the website Wikileaks indicate that ICTY personnel have maintained an inappropriately close relationship with the U.S. Embassy in The Hague.<\/p>\n When the Tribunal needs money to retain staff and finance their operations, they go hat in hand to the U.S. Embassy. A cable dating from 2004 says, \u201cThe Chief Prosecutor and Registrar of the International Criminal Tribunal for the former Yugoslavia (ICTY) urged Ambassador for War Crimes Issues Pierre Prosper to weigh in with UN Headquarters to help solve two emerging budget and personnel crises.\u201d[9]<\/a><\/p>\n It\u2019s interesting that a supposedly \u201cindependent UN Tribunal\u201d would need the U.S. Government to act as an intermediary between itself and UN Headquarters to secure its funding.<\/p>\n In addition to asking the United States for help with funding, ICTY personnel have disclosed confidential information to the American Embassy. Carla del Ponte disclosed the contents of Slobodan Milosevic\u2019s confidential witness list to the Americans.[10]<\/a>\u00a0The unauthorized disclosure of confidential ICTY filings is a violation of Rule 77(A)(ii) of the ICTY\u2019s rules, but that didn\u2019t seem to stop her.<\/p>\n Tim McFadden, the head of the ICTY\u2019s UN Detention Unit, went to the American Embassy and disclosed details about Slobodan Milosevic\u2019s medical condition, his mental state, details about his daily routine, and even personal details about his relationship with his wife and the contents of their telephone conversations.[11]<\/a><\/p>\n The cables show that internal politics, greed and self-interest play a big role at the Tribunal. According to one cable, \u201cThe newly appointed President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), judge Patrick Robinson, recently informed ICTY registrar Hans Holthuis that he would not recommend that the Secretary General reappoint Holthuis for a third four-year term. Holthuis was informed of this decision on November 17, Robinson\u2019s first day as president and less than two months before the end of Holthuis, term.\u00a0 This decision comes at the same time that the judges are lobbying for increased pension benefits.\u00a0 We believe that this decision is in part because the President does not feel that Holthuis has done enough to lobby for increased pensions.\u201d[12]<\/a><\/p>\n ICTY Verdicts and Personnel Corrupted by Politics<\/b><\/p>\n It\u2019s ironic that the judges have their hands out for more money when, according to these leaked diplomatic cables, they\u2019re not even the ones who write the verdicts. They palm that responsibility off on their legal clerks.<\/p>\n When the ICTY Appeals Chamber handed down its verdict in the Radislav Krstic genocide trial, American embassy personnel in The Hague reported back to Washington that \u201cThere is a general sense among prosecutors that the Appeals Chamber first decided that Krstic did not merit conviction as a principal perpetrator of genocide but that, for \u2018political\u2019 reasons, it did not want to set aside the finding that the massacres around Srebrenica constituted genocide.\u00a0 The result, one prosecutor said, made it seem as if \u2018an eighteen year-old law clerk\u2019 had written the judgment on the basis of a decision reached \u2018by academics and diplomats\u2019.\u00a0 In fact, a law clerk involved in the drafting confirmed to embassy legal officers that the chamber had given the drafters general directions, \u2018the bottom line,\u2019 and that the law clerk drafters had to determine how to get there.\u201d[13]<\/a><\/p>\n Rather than the evidence leading to the findings, the opposite was done with the Krstic Appeal judgment. The people who wrote the judgment were given a predetermined conclusion, and then they had to \u201cdetermine how to get there.\u201d But perhaps the most noteworthy thing about this cable is its implication that politics influenced the Tribunal\u2019s classification of the Srebrenica massacre as a \u201cgenocide\u201d.<\/p>\n When Nasir Oric was acquitted by the ICTY Appeals Chamber, the Head of the OTP\u2019s Liaison Office, Mr. Deyan Mihov, told American Embassy personnel in Belgrade something that Serbian public opinion has long suspected. He said, \u201cIt is becoming increasingly obvious that decisions in the chamber are being politically driven.\u201d[14]<\/a><\/p>\n Judge Frederik Harhoff was recently removed from the Tribunal\u2019s bench after circulating a letter in which he claimed that Judge Meron was exerting pressure on his fellow judges in their deliberations because of \u201cpressure from \u2018the military establishments\u2019 in certain dominant countries\u201d \u2014 particularly the United States.[15]<\/a><\/p>\n The cables show that the U.S. Government lobbied for Meron\u2019s appointment to the Tribunal. In fact Judge Meron is even described by one of the cables as \u201cthe Tribunal\u2019s preeminent supporter of US Government efforts.\u201d[16]<\/a><\/p>\n When Meron wanted Carla del Ponte fired as ICTY chief prosecutor, he took his request to the U.S. Embassy.<\/p>\n According to the cable, \u201cMeron explained that Del Ponte is \u2018primarily a media person who is primarily interested in her own legacy.\u2019\u00a0 She has \u2018absolutely no idea about management\u2019 and is \u2018not in control of her staff.\u2019\u00a0 He described \u2018tremendous unrest\u2019 in the OTP, noting that a senior OTP official had met with him to convey a detailed litany of concerns about the poor management of the office and the threat it posed to achieving completion strategy targets. Meron provided a confidential memorandum of that conversation reporting the official\u2019s view that \u2018the current Prosecutor lacks the required vision, lacks the needed managerial competence, and lacks the commitment to the completion strategies that will be necessary to bring them about as promised\u2019.\u201d[17]<\/a><\/p>\n A cable dating from 2007 shows that France wanted the job of ICTY Chief Prosecutor to be given to Serge Brammertz for manifestly political reasons.<\/p>\n According to the cable, \u201cFrance is backing Serge Brammertz to succeed Carla Del Ponte as ICTY Chief Prosecutor from a belief that Brammertz will otherwise refuse to extend his mandate at the UN International Investigative Commission (UNIIIC), an outcome the French characterize as disastrous. MFA UN\/Middle East Action Officer Salina Grenet explained to Poloff on May 10 that Brammertz was conditioning any prolongation of his UNIIIC duties on a guarantee \u2014 by June 15 at the latest \u2014 of a suitable onward assignment.\u201d[18]<\/a><\/p>\n Bias, Conflicts of Interest, and Suppression of Evidence<\/b><\/p>\n The apparent fact that the ICTY Chief Prosecutor got his job because of political horse-trading is particularly disturbing because the Office of the Prosecutor oversees the Tribunal\u2019s investigations and it has the unique power to suppress evidence of war crimes by refusing to carryout investigations and refusing to issue indictments.<\/p>\n Moreover, there are strong indications that the investigations they do carry out are biased. In 2006 a survey of twenty-five forensic pathologists employed by the Tribunal was conducted, and the results were published in the prestigious academic journal \u201cMedicine, Science and the Law.\u201d[19]<\/a><\/p>\n The study found that \u201csome of the forensic pathologists involved belonged to human rights organizations that were not neutral in the conflicts. Moreover, most of them belonged to countries which are NATO members.\u201d<\/p>\n In spite of the Tribunal\u2019s attempt to stack the deck with pathologists that would be sympathetic to the NATO cause, the study found that of the twenty-five pathologists surveyed: \u201cThree forensic pathologists reported that they had been subjected to pressures, one by the Croatian government, the two others by a human rights organization, a non-governmental organization which controlled the course of autopsies and also concerning the writing of the autopsy reports.\u201d<\/p>\n Moreover, \u201cThree forensic pathologists were aware of mass grave sites wittingly not investigated by the ICTY, especially mass graves of Serbian victims\u201d and \u201cfour of them questioned the impartiality of the justice led by the ICTY.\u201d<\/p>\n The study noted disturbing irregularities concerning the ICTY\u2019s forensic investigations, including that the \u201cfinancial independence of the forensic pathologists could be questioned as not all of them have been paid directly by the ICTY according to the comments of some of our respondents.\u201d<\/p>\n The study also noted what it called a \u201cdisturbing feature of the ICTY proceedings\u201d where \u201cnot all forensic pathologists involved presented verbal evidence to the court in The Hague, but only the senior chief forensic pathologist of the team appeared to give evidence, in contradiction to the tradition that the responsibilities of an individual forensic scientist are personal and not corporate.\u201d<\/p>\n The Tribunal likes to boast that its \u201cproceedings provide victims and witnesses the opportunity to be heard and to speak about their suffering. To date, over 3,500 witnesses have told their stories in court. Through this, they have contributed to creating elements of a historical record.\u201d[20]<\/a><\/p>\n One victim that was not allowed to contribute to the historical record by speaking about her suffering was Ms. Angelina Pikulic, a Serbian woman from Pofalici who was held prisoner at the Silos prison camp in Tarcin from May of 1992 until January of 1996.<\/p>\n During her stay in the camp she was subjected to inhumane treatment by her captors, and she witnessed other Serbian prisoners being tortured, raped, and killed by Muslim soldiers and policemen. The prisoners were held in terrible conditions, and she had to live for more than three years with the constant threat of being raped or killed while she was in that camp.[21]<\/a><\/p>\n The conditions of her imprisonment were just as bad as anything Muslim prisoners had to endure in Serb-run camps. The difference is that the Office of the Prosecutor never bothered to indict any Bosnian-Muslim officials for what they did to the Serbian prisoners in the Silos camp.<\/p>\n When Ms. Pikulic testified as a witness in the Karadzic trial, the trial chamber forced her to redact her witness statement and remove all references to her imprisonment in the Silos camp after the Prosecution requested that her testimony be rejected on the grounds that, \u201cThirteen out of the eighteen paragraphs of Ms. Pikulic\u2019s statement relate exclusively to crimes committed against Serbs.\u201d[22]<\/a><\/p>\n She protested the Chamber\u2019s ruling saying, \u201cThose paragraphs have to do with my stay in the Silos camp, which in turn would mean that I cannot convey the suffering I had undergone in the Silos camp.\u201d[23]<\/a><\/p>\n Judge Morrison explained that \u201cthe reality of the position in which we find ourselves is this is not the right forum for that and accordingly the limitations have been put on. This is not out of a lack of sympathy for the witness; it\u2019s to expedite the proceeding.\u201d[24]<\/a><\/p>\n While there may be truth in the argument that Muslim crimes don\u2019t excuse Serbian crimes, and that the Karadzic trial may not be the best forum for Serbian victims of Muslim atrocities to tell their stories. The reality for Ms. Pikulic is that there was no other forum to go to because the Tribunal isn\u2019t prosecuting anyone for what was done to her or the other prisoners in that camp.<\/p>\n Muslim victims from Serb-run camps like Omarska and Keraterm can come to the Tribunal and have their stories recorded for historical research and posterity, but she can\u2019t.<\/p>\n Not only did ICTY Prosecutors fail to prosecute her captors for what they did to her and the other prisoners in the Silos camp, but they went out of their way to have her witness statement redacted to ensure that no mention of the crimes they endured would be recorded anywhere in the Tribunal\u2019s archives.<\/p>\n In spite of Judge Morrison\u2019s explanation, it didn\u2019t expedite the proceedings for the Prosecution to file a motion to exclude her evidence, nor did it expedite the proceedings for the judges to go through the process of writing a decision granting the Prosecution\u2019s request and for the defense to redact and refile her witness statement. If anything that whole process delayed the proceedings. The judges are perfectly capable of ignoring whatever evidence they think is irrelevant. The only purpose that redacting that evidence could have is to suppress it and prevent it from going on the record.<\/p>\n Conclusion<\/b><\/p>\n The Tribunal\u2019s high minded rhetoric about fighting impunity and giving a voice to the victims of atrocities is disingenuous at best. The ICTY gives impunity to its NATO benefactors, and it only gives a voice to the victims it wants to hear.<\/p>\n The Tribunal\u2019s purpose isn\u2019t \u201cbringing war criminals to justice\u201d or \u201cbringing justice to victims\u201d. The Tribunal\u2019s purpose is to provide political leverage to the United States and NATO \u2013 that\u2019s why it was established in the first place. The judges and the prosecutors know that their paycheck depends on keeping their American and NATO benefactors happy, and that\u2019s why the Tribunal issues the indictments and the verdicts that it does.<\/p>\n They can put the Tribunal in The Hague, they can dress the judges up in fancy red judicial robes, and they can put a UN flag on the building, but none of that makes the Tribunal a politically neutral institution. The ICTY is corrupted to its core by politics and by the influence of NATO and the United States Government.<\/p>\n We have a saying in America. You can put lipstick on a pig, but it\u2019s still a pig. In spite of all of the pomp and window-dressing surrounding the ICTY and its proceedings, it\u2019s still a kangaroo court.<\/p>\n Endnotes:<\/b><\/p>\n [1]<\/a>\u00a0ICTY\u2019s 20th Anniversary \u2013 Statement by President Judge Theodor Meron<\/p>\n <http:\/\/www.icty.org\/sid\/11319><\/p>\n [2]<\/a>\u00a0\u201cArbour Draws US Ire Over Remarks About NATO Pilots\u201d, Monday, May 24, 1999, UN Wire,<\/p>\n <http:\/\/www.unwire.org\/unwire\/19990524\/2768_story.asp<\/a>>;<\/p>\n See also: \u201cWe\u2019ll never hand pilots to Arbour: U.S. official\u201d, National Post (Canada), May 22, 1999<\/p>\n [3]<\/a>\u00a0Interview with Richard Holbrooke, \u201cUnited Nations or Not? The Final Judgement: Searching for International Justice\u201d, BBC Radio, September 9, 2003<\/p>\n <http:\/\/www.bbc.co.uk\/radio4\/news\/un\/transcripts\/transcript_programme3.shtml><\/p>\n [4]<\/a>\u00a0State Department Dayton History Project Interview with Richard Holbrooke and Robert Owen, 18 JUN 1996<\/p>\n <http:\/\/www.foia.cia.gov\/sites\/default\/files\/document_conversions\/1817859\/1996-06-18.pdf><\/p>\n [5]<\/a>\u00a0State Department Dayton History Project Interview with Madeleine Albright, 28 OCT 1996<\/p>\n <http:\/\/www.foia.cia.gov\/sites\/default\/files\/document_conversions\/1817859\/1996-10-28.pdf><\/p>\n [6]<\/a>\u00a0Remarks at the United States Supreme Court, Washington D.C., Monday April 5, 1999<\/p>\n [7]<\/a>\u00a0M2 PRESSWIRE; May 28, 1999; NATO Transcript of press conference given by Mr Jamie Shea and Major General Walter Jertz in Brussels and \u201cPress Conference Conducted by NATO Spokesperson Jamie Shea and Major Gen. W. Jertz,\u201d M2 Presswire, May 17, 1999<\/p>\n [8]<\/a>\u00a0BTF Assessment: \u201cYugoslavia\u201d Policy Options: Likely Responses 01-Feb-93<\/p>\n <http:\/\/www.foia.cia.gov\/sites\/default\/files\/document_conversions\/1817859\/1993-02-01.pdf><\/p>\n [9]<\/a>\u00a0Wikileaks Cable: 04THEHAGUE1693 <https:\/\/www.wikileaks.org\/plusd\/cables\/04THEHAGUE1693.html><\/p>\n [10]<\/a>\u00a0Wikileaks Cable: 04THEHAGUE985<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/04THEHAGUE985.html><\/p>\n [11]<\/a>\u00a0Wikileaks Cable: 03THEHAGUE2835<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/03THEHAGUE2835.html><\/p>\n [12]<\/a>\u00a0Wikileaks Cable: 08STATE133190<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/08STATE133190.html><\/p>\n [13]<\/a>\u00a0Wikileaks Cable: 04THEHAGUE1033<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/04THEHAGUE1033.html><\/p>\n [14]<\/a>\u00a0Wikileaks Cable: 06BELGRADE1092<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/06BELGRADE1092.html><\/p>\n [15]<\/a>\u00a0http:\/\/www.bt.dk\/sites\/default\/files-dk\/node-files\/511\/6\/6511917-letter-english.pdf<\/p>\n [16]<\/a>\u00a0Wikileaks Cable: 03THEHAGUE2818<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/03THEHAGUE2818.html><\/p>\n [17]<\/a>\u00a0Wikileaks Cable: 03THEHAGUE1827<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/03THEHAGUE1827.html><\/p>\n [18]<\/a>\u00a0Wikileaks Cable: 07PARIS1882<\/p>\n <https:\/\/www.wikileaks.org\/plusd\/cables\/07PARIS1882.html><\/p>\n [19]<\/a>\u00a0Geoffroy Lorin De La Grandmaison, Michel Durigon, Gr\u00e9goire Moutel,and Christian Herv\u00e9; \u201cThe international criminal tribunal for the former Yugoslavia (ICTY) and the forensic pathologist: ethical considerations\u201d; Med Sci Law. 2006 July; 46(3): 208\u2013212. <http:\/\/www.ncbi.nlm.nih.gov\/pmc\/articles\/PMC3348121\/><\/p>\n [20]<\/a>\u00a0\u201cThe Tribunal\u2019s Accomplishments in Justice and Law\u201d<\/p>\n < http:\/\/www.icty.org\/x\/file\/Outreach\/view_from_hague\/jit_accomplishments_en.pdf ><\/p>\n [21]<\/a>\u00a0Unredacted Witness Statement: <http:\/\/peterrobinson.com\/Witness%20Lists\/Week%20Six_Witness\/Angelina%20Pikulic%20Revised%2092%20ter%20notice.pdf><\/p>\n [22]<\/a>\u00a0Prosecution\u2019s Motion to Exclude the Evidence of Witness Angelina Pikulic; 19 November 2012; See Also: Karadzic Trial Chamber, \u201cDecision on the Prosecution\u2019s Motion to Exclude the Evidence of Witness Angelina Pikulic\u201d, 27 November 2012<\/p>\n [23]<\/a>\u00a0Karadzic trial Transcript, 29 November 2012<\/p>\n