http://www.globalresearch.ca/index.php?context=viewArticle&code=20070308&articleId=5021
Yugoslavia: Human Rights Watch in Service to the War Party
by Edward S. Herman and David Peterson and George Szamuely
Global Research, March 9, 2007
Zmag.org - 2007-02-25
Part 3: HRW “Weighs the Evidence”
Weighing the Evidence: Lessons from the Slobodan Milosevic Trial (hereafter, WTE) was drafted under the auspices of HRW's International Justice Program (IJP). Principal author Sara Darehshori is a Senior Counsel with the IJP. The document acknowledges the help (among others) of ten current and former HRW staff members, including the IJP's Director Richard Dicker. Gratitude is expressed toward the ICTY prosecutor Dermot Groome “for reviewing the evidence sections of the paper;” Groome's main responsibility at the Milosevic trial was to make the charge of “genocide” stick to the defendant. Thanks are also given to the Milosevic trial's chief prosecutor Geoffrey Nice, who “was especially generous with his time and insights and deserves special mention.” To Diana Dicklich, the Prosecution's case manager during the Milosevic trial. And to Alexandra Milenov, a Registry Liaison Officer for Serbia and Montenegro . Also, WTE acknowledges the help of unidentified “members of the Office of the Prosecutor, Chambers, Registry, Outreach, and Defense….” Finally, it mentions but does not identify by name the “assistance and leads given us by several journalists who covered the trial closely and provided us with insights from an observer's perspective.”[77]
The IJP's promotional literature tells us that its purpose is “to promote justice and accountability for genocide, war crimes, and crimes against humanity in countries where national courts are unable or unwilling to do so.”[78] But whenever we look at the IJP's work, no matter where we turn, we find the former Yugoslavia occupying center stage. Of the 49 full-length “Reports” to have been archived on the IJP's website through December 2006, roughly one-third of them (16) deal with the conflicts over the former Yugoslavia.[79] Similarly, of the 481 documents that the IJP archives “by Region,” 31 percent of them focus on “The Balkans” (i.e., on matters related to the former Yugoslavia, including the performance of the ICTY).[80] In keeping with this focus, the single longest document ever published by HRW (861 pages) was devoted to publicizing the work of the ICTY; as its Preface tells us, it was “intended as an accessible reference tool to assist practitioners and researchers as they familiarize themselves with ICTY case law.”[81] Indeed, HRW's longest-ever study of a particular theater of conflict (623 pages) was devoted to the Serbian province of Kosovo . More precisely, it stated that its aim was “to document the war crimes committed by Serbian and Yugoslav government forces in Kosovo between March 24 and June 12, 1999—the period of the NATO bombing of Yugoslavia .”[82] No other theater or theme besides the former Yugoslavia and the work of the ICTY weighs anywhere near as heavily in the IJP's scales. It would not be unfair to say that the former Yugoslavia has served HRW as a kind of real-world laboratory against which to test certain conceptions of human rights and international justice. WTE thus belongs to a lineage that has been years in the making, and this report exhibits the same overall pattern of advocacy and bias that has characterized HRW’s treatment of Balkans issues from 1990 onward.[83]
Surely this extraordinary attention is not justified by the scale of the atrocities. As we noted earlier, HRW avoided reporting current estimates of war-related deaths in Bosnia, even though it acknowledged their “downward revision”—the unacknowledged numbers falling from 200,000 - 300,000 to 100,000 on all sides.[84] Although estimates of the deaths caused by the Indonesian invasion and occupation of East Timor are commonly in the order of 200,000,[85] the IJP archives only one major report on East Timor, but 16 on Yugoslavia.[86] Clearly, this degree of contrast in levels of attention cannot be correlated with the scale of atrocities under investigation, and flies in the face of HRW’s claim that its aim is “redressing the more grievous human rights crimes.”[87] The contrast can, however, be linked to U.S. foreign policy priorities. Thus, Indonesia was immensely important to Washington, and the U.S. supported its military attack on East Timor, with HRW favorite Richard Holbrooke serving first as the Carter and later the Clinton point man on East Timor, providing cover for Indonesia's genocidal performance.[88] But in the former Yugoslavia, Washington supported Croatia and the Muslims of Bosnia, and assailed the Serbs; and it can hardly be a coincidence that HRW was deeply interested in atrocities committed by Serbs, with Holbrooke again serving as the Democrats' point man, but this time by advocating hard-line policies toward the alleged Serb aggressors. (Holbrooke has been a guest speaker at multiple HRW events held in the United States and abroad.[89] His wife, Kati Marton, serves on the HRW Board of Directors.[90])
In another dramatic illustration of HRW’s adaptation to the U.S. foreign policy agenda, we may contrast HRW's treatment of Serb conduct in Croatia, Bosnia, and Kosovo, on the one hand, to which HRW gives priority, documents extensively, and denounces with great indignation and generous use of the word “genocide,” with HRW's treatment of the Croatian slaughter and ethnic cleansing of Serbs during Operations Flash and Storm in 1995, on the other. These operations were carried out by Croatian forces with the active support of the Clinton administration. Flash itself was a substantial ethnic cleansing of Serbs from Western Slavonia , carried out in May 1995, in which at least 450 Serbs were killed and an estimated 12,000 expelled.[91] As described by Brendan O’Shea, “This was conquest and a 'land grab'. This was precision ethnic cleansing supported and condoned by the United States .”[92]
Operation Storm was a larger-scale action that involved the brutal and carefully planned ethnic cleansing of the entire Serb civilian population of Croatian Krajina, some 250,000 people. Carried out within a month of the Srebrenica massacre in eastern Bosnia, Storm may well have involved the killing of more Serb civilians than Bosnian Muslim civilians killed in the Srebrenica area in July: Most of the Bosnian Muslim victims were fighters, not civilians, as the Bosnian Serbs bused the Srebrenica women and children to safety; the Croatians made no such provision and several hundred women and children were slaughtered in Krajina.[93] The ruthlessness of the Croats was impressive: “UN troops watched horrified as Croat soldiers dragged the bodies of dead Serbs along the road outside the UN compound and then pumped them full of rounds from the AK-47s. They then crushed the bullet-ridden bodies under the tracks of a tank.”[94]
HRW went to great pains to deny that Operation Flash involved serious human rights violations, and its report on the subject chastised the UN for rushing to a hasty negative judgment.[95] In this case, HRW called for great care in dealing with witness evidence of human rights violations, a point that it never once makes in WTE as regards the ICTY’s eminently problematic acceptance of witness evidence of Serb actions.[96] It also singled out for reprimand the UN official Yasushi Akashi for public statements that HRW found “controversial” and unfairly critical of the Croatian military campaign. “[W]e believe that criticism of a government's human rights record should be commensurate with the level of abuse,” HRW countered; “exaggerated and imprudent remarks… can potentially be counterproductive and damaging to respect for human rights.”[97] This report used the phrase “ethnic cleansing” three times, but only in reference to Serb actions, not Croat; and HRW never applies the word “genocide” to Operation Flash or Storm, though it uses this word liberally in remarks about Serb behavior. Keeping to the same line, a much longer 1996 report on Operation Storm limited its use of the phrase to “bureaucratic ethnic cleansing,” and then only in relation to laws enacted by Croatia to discourage the return of Serbs driven out by its military campaign.[98] “The Croatian government has…argued that 'Operation Storm' did not constitute—nor can it be compared to—the abuses associated with the policy of 'ethnic cleansing' of non-Serbs as practiced in Serbian-controlled territories in Croatia and Bosnia since 1991 and 1992,” this report noted. “Unless the Croatian government reverses its recent actions by allowing the safe return of Serbian civilians to the Krajina area…it will also have to answer to the charge of 'ethnic cleansing' that is often levied against Serbian forces.”[99] As regards Serb actions, HRW never makes the use of the phrase “ethnic cleansing” dependent on Serb failure to reverse what has already been done.
Even more dramatic were the gross apologetics for Operation Storm provided in August 1995 by Holly Cartner, then Executive Director of Human Rights Watch/Helsinki.[100] Cartner explained the vast exodus of Serbs from Krajina as resulting from “intensive military operations,” Serbs “encouraged to go by their own leaders,” and Croatia’s anti-Serb propaganda. She writes that Serbs “were able to collect their belongings…and leave in semi-orderly fashion.” She never acknowledges the high-level deliberate planning of this cleansing operation—it was just an inexplicable “military operation”—nor does she mention the active U.S. support for Operation Storm. She calls upon Croatian President Tudjman to send trained people to care for the remaining Serbs, to permit the return of those who fled, and to prosecute soldiers guilty of war crimes. But she doesn’t demand trials for the Croat leaders in the interest of “justice”—these leaders are apparently good folks who had made a little mistake but can get their own house in order. “While all parties to the wars in the former Yugoslavia have committed war crimes,” Cartner asserted, “only one side—the rebel Serbian forces in Bosnia and Croatia—has attempted to eliminate 'in whole or in part' a people on the basis of their ethnicity.” Pushing out 250,000 Serbs while killing over a thousand of them in just a few short days doesn’t qualify as eliminating on the basis of ethnicity!
Shortly before, Peter Galbraith, U.S. Ambassador to Croatia, had also denied that Operation Storm constituted a case of “ethnic cleansing,” telling a BBC radio interviewer that “Ethnic cleansing is a practice sponsored by the leadership in Belgrade, carried out by the Bosnian Serbs and also by the Croatian Serbs,” not by Croatia—a position condemned throughout much of the world.[101] But though Storm was one of the clearest cases—and the largest—of cleansing a geographic space of its people on the basis of their ethnicity during the Balkan conflicts, neither the U.S. Government, HRW, nor Holly Cartner could bring themselves to use such a term to describe this Croatian action. The HRW double standard in word usage as well as in the selection (and misuse) of evidence follows closely the official agenda. Twice over the course of three months in 1995, Croatia had militarily emptied Serb population centers, and HRW principals attacked the critics of Croatia 's offensives for their insensitivity towards the perpetrators, truly a remarkable chapter in the history of this human rights organization.
While WTE pretends to be fair-minded on the Milosevic trial, it is not: It hews closely to the Prosecution's case against Milosevic, takes for granted all the premises of the Prosecution and establishment narrative, and selects and massages evidence on a regular basis to support that narrative. Thus WTE takes it as a simple truism that the ICTY is pursuing justice, and it never addresses ICTY's political origins, purpose, integration into NATO plans and operations, problematic rules and rule-making, staffing, and selectivity.
According to a celebrated maxim: “Justice must not only be done, it must also be seen to be done.” But both the ICTY and WTE postulate Serb and Milosevic guilt; and WTE sees no contradiction between presuming guilt and conducting a fair trial, much less between the integration of the work of the ICTY and U.S.-NATO policy, on the one side, and the likelihood or even the possibility of its rendering justice, on the other. WTE does not find it problematic that Richard May, the Presiding Judge until a fatal illness forced his resignation in late February 2004, Geoffrey Nice, the lead prosecutor, and four of the five amicus curiae appointed by the court heralded from countries that participated in the NATO war against Yugoslavia, or close allies.[102] Similarly, of the 25 judges now serving at the ICTY, 12 are from NATO members; one is from South Korea, a close U.S. ally; three from Jamaica and Guyana, countries having close relations with Great Britain; three from Austria, Sweden and Switzerland, countries generally supportive of NATO in the Balkans; two from Pakistan and Senegal, which are Muslim countries. ICTY President Fausto Pocar is from Italy , a NATO country; and Vice President Kevin Parker is from Australia , a close U.S. ally.[103] One proposed judge from Russia was vetoed on the basis of a potential “pro-Serb bias”! [104]
The ideas stressed in John Laughland’s Travesty, that legal justice requires a lawful base in an enabling statute, a separation between prosecution and judges, a stable body of rules not changeable by the judges in accord with passing convenience,[105] an appeals process outside the body of appointed judges themselves, qualified judges, and independence from powerful interests with a political agenda, are outside HRW’s and WTE’s orbit of thought.[106] This failure to question structured bias is remarkable for a body that claims to support the rule of law—which HRW seems to regard as something that an advanced civilization needs to impose upon backwards peoples. But while HRW allegedly seeks the rule of law and “accountability” in these backward areas, it is extremely cavalier about the lack of rigor of the law, judicial practice, and accountability, in an institution pursuing “justice” in accord with U.S. and NATO priorities. As we have stressed, with HRW’s principals regularly violating the UN Charter prohibition of aggression, that area of justice is set aside, and although it accepts the urgency of the ICTY principle that one can hardly hope to “restore the rule of law [etc.]… if the culprits are allowed to go unpunished,”[107] HRW fails to see the necessity of applying this in the case of those committing the “supreme international crime,” such as Richard Holbrooke, Madeleine Albright, Bill Clinton and George Bush.
The most important achievement of the Milosevic trial, WTE declares, was that it “showed how Belgrade enabled the war to happen.”[108] The “JNA, the Serbian Ministry of Interior and other entities…armed Serb civilians and local territorial defense groups in Krajina and Bosnia prior to the start of conflict….”[109] To support this line, WTE cites NATO commander Wesley Clark: “We knew that the Serb military had been…carved out of the Yugoslav military.”[110]
But the armed forces of Bosnia and Herzegovina , Croatia , and even Macedonia were carved out of the JNA no less than were the Serb forces. In a series of civil wars, each rival sought and acquired arms, allies, and sponsors—some more successfully than others. If the JNA helped to create the military formations of the Serbian Krajina and Republika Srpska, it did likewise for the Bosnian Muslim and Bosnian Croat armies, for Fikret Abdic's Muslim troops in Bihac, and for countless paramilitary groupings. Unlike Berlin , Vienna or Washington , however, (or Riyadh , Tehran , Islamabad or Ankara ,) Belgrade was not a foreign power. This point is lost on WTE. As is the fact that if aid to the Croatian and Bosnian Serbs “enabled the war to happen,” so did aid to the Croats and Muslims, with decisive consequences as the wars dragged on.
But the Milosevic trial shed little light on which rival inherited what from the JNA, including its arms, organizational knowledge, plant and infrastructure. The Prosecution showed no interest in this line; nor does WTE. During cross-examination of Morton Torkildsen, a financial “expert” whose testimony figures prominently in WTE (the document cites Torkildsen's name 20 times), Milosevic asked whether the analysis he produced had covered “not just [the] weapons and equipment but entire military factories” left behind in territories “under control of the Croats and Muslims?” “No,” was Torkildsen's reply. His mandate went only as far as “evidence relative to the indictment of the accused.” But no further.[111]
In any case, how the rivals acquired their weapons is secondary to who took up arms first, and for what purposes. Also prominent in WTE (mentioned 15 different times) is the testimony of the former JNA General Aleksandar Vasiljevic. Prosecutor Nice asked Vasiljevic about the JNA's “goals.” “[T]he first and basic objective was…for the JNA to separate the parties in conflict,” Vasiljevic explained, referring to court documents. “Later, the objectives were to protect…the JNA units which were then…in facilities and barracks that were under blockade in the territory of Croatia . And sometime from August or September onwards, 1991…the protection of endangered peoples is referred to, the people in those areas that were attacked by either side, any side. Specifically in that period of time that we're referring to, that is to say September 1991, this had to do with the protection of the Serb people in some areas….” Nice then asked a follow-up question: “Was there, in your opinion, any question of the JNA forcing a political solution to the crisis?” Vasiljevic replied: “Never. Not in any period of time. The JNA never imposed a solution or ways of getting out of the crisis.”[112] But these aspects of Torkildsen's and Vasiljevic's testimony do not interest WTE, and none of it “enabled the war to happen.” Instead, the Serbs were most responsible for the wars in Yugoslavia . The Serbs committed crimes far more horrendous than their rivals. The Serbs, alone, were guilty of genocide.
WTE commits many errors, each invariably supportive of its biased treatment of the issues. For example, following the ICTY and party line narrative, WTE reports that the Serbs “expelled” 800,000 Kosovo Albanians by June 1999.[113] But large numbers fled from fear of NATO bombs and fighting, some were pushed out by the KLA, and literal expulsions by the Yugoslav army were concentrated in areas of strong KLA presence.[114] What is more, the larger fraction of Kosovo Serbs than Kosovo Albanians who fled during that bombing war were hardly “expelled,”[115] although some may have been pushed out by, or fled in fear of, the KLA.
In addition to offering an error-laden history, WTE stops short in its descriptions of events when the story might appear to contradict the benign version of NATO's and the ICTY's supposed campaign for justice. Thus WTE writes that since the end of the bombing war and the withdrawal of FRY and Serb forces from Kosovo on June 20, 1999, the “United Nations has administered Kosovo with support from a NATO-led peacekeeping force, although it formally remains part of Serbia .”[116] But that is all. No mention of the fact that under UN and NATO auspices there were over a thousand killings and disappearances, that over 150,000 Serbs and tens of thousands of Roma were driven out of Kosovo in what Jan Oberg has called the “largest ethnic cleansing [in proportionate terms] in the Balkans,”[117] and that it is a state dominated by fear and chronic low level terror and with a thriving drug and sex trade, but with a huge U.S. military base planted in its center.
HRW's bias and blasé acceptance of abuses of a supposedly judicial process were quickly made evident in their putting forward the “Scorpion video” as a case in which an “important item” of “evidence” came into view through the work of the ICTY.[118] This video, “which showed members of the notorious ‘Scorpion’ unit, believed to have been acting under the aegis of the Serbian police, executing men and boys from Srebrenica at Trnovo. Although the video was never admitted as evidence, it was shown at the trial and would not have become public but for the trial. It had enormous impact….”[119] Contrary to WTE, the statement that this group was “believed to be operating under the aegis of the Serbian police” was convincingly refuted during the Milosevic trial (see Appendix). WTE’s and HRW’s contempt for the rule of law is also displayed by WTE’s failure to mention that the video was shown by the prosecutor during Milosevic’s defense, free of cross-examination, despite its lack of authentication and the absence of any connection between it and the knowledge and testimony of the witness on the stand. As amicus curiae Steven Kay objected in court, it was “sensationalism…not cross-examination,”[120] an unjudicial propaganda contribution to the imminent 10th anniversary memorial to the Srebrenica massacre, and clear evidence of the ICTY’s political role.[121]
But why was this evidence deemed “important” by WTE? There has never been any doubt that Serb paramilitaries executed ”men and boys” during these years of fighting in Bosnia, just as there is no question but that Croat and Bosnian Muslim (and imported Mujahadeen) did the same. Naser Oric, the Bosnian Muslim commander at Srebrenica until shortly before its fall to Bosnian Serb forces in July 1995, proudly showed Western reporters videos of beheaded Serbs that forces under his command had killed during their operations.[122] Back in May 1993, the Yugoslav government submitted to the UN Secretary-General an extensive 132-page dossier titled War Crimes and Crimes and Genocide in Eastern Bosnia...Committed Against the Serb Population from April 1992 to April 1993, listing by name and place hundreds of Serbs killed by Muslim and Mujahadeen forces in that early period.[123] More recently, the Tabeau-Bijak report estimated some 16,000 Serb civilians killed in Bosnia during the 1992-1995 wars.[124] In civil wars people are killed, sometimes using the most heinous methods. So a video record of the execution of six young Bosnian Muslim males is only important for identifying particular individuals as engaging in criminal acts or for propaganda service.
The Prosecution's evidence in the Milosevic trial consisted heavily of witnesses who claimed killings and other abuses by Serb forces, and WTE follows in the same well-worn path. As Laughland notes, however, “Indictments [by the ICTY] are drawn up with little or no reference to the fact that the acts in question were committed in battle: one often has the surreal sensation one would have reading a description of one man beating another man unconscious which omitted to mention that the violence was being inflicted in the course of a boxing match.”[125] At the opening of his trial Milosevic devoted several hours to showing video evidence of deaths and injuries to Serbs from NATO violence,[126] and there is every reason to believe that he could have called several hundred witnesses, and presented a great deal more video evidence of crimes against Serbs. That would have represented a different agenda and political purpose than the trial in place, but only committed partisans like the ICTY and HRW could believe that civil war atrocities were unique to one side and that a video showing six executions was “important” evidence.
In early August 2006, Serbian and Croatian television began playing videotapes that allegedly depict scenes shot at various stages of Operation Storm. One shows the “Croatian army's 'Black Mamba' unit and the Bosnian military's 'Hamze' squad killing and abusing Serb soldiers and civilians,” Agence France Presse reported. A second shows the Army of Bosnia and Herzegovina Fifth Corps Commander Atif Dudakovic “ordering his troops to torch Serb villages in northwestern Bosnia in September 1995. 'I'm ordering the village to be torched….Torch everything without exception', Atif Dudakovic…shouted in the film that showed houses in flames.” A BBC report translated Dudakovic ordering: “[B]urn that village….Burn, burn everything….Go on, burn everything in your wake!”[127] The State Department's information bureau acknowledged that “One tape reportedly shows Croat and Bosnian troops harassing and attacking convoys of Serb refugees, in one scene killing a Serb who has surrendered. Another tape shows a prominent Bosnian general apparently ordering his troops to burn Serb villages.”[128]
Bosnia-Herzegovina's Foreign Minister Mladen Ivanic (a Serb) called for an investigation, and said authorities needed to show that they would “treat all war crimes the same way.”[129] But when asked during its weekly press briefing whether the Office of the Prosecutor “was conducting an investigation” into these matters, spokesman Anton Nikiforov “stated that it was regrettable that the tape had surfaced now just as the OTP had finished its investigative mandate.”[l30] Through early 2007, the ICTY had not indicted Dudakovic. Is it not interesting how videotapes such as these, and Naser Oric's, are not “important” to WTE or the ICTY, and allegedly come too late for action, just as the long-awaited (and perhaps nonexistent) indictments of Tudjman and Izetbegovic were never served during their lifetimes?[131]
WTE suggests that the Milosevic trial has served a truth commission-like function on behalf of the historical record, both in its having assembled evidence, decisions, and transcripts of proceedings, and for the news accounts of journalists who reported on what transpired in the courtroom. The “Milosevic trial may be one of the few venues in which a great deal of evidence was consolidated about the conflicts,” WTE affirms. As a result, it “should help shape how current and future generations view the wars and in particular Serbia ’s role in them.”[132] But this is history according to the Office of the Prosecutor, whose lawyers and staff can at least claim that their job was to win a conviction at trial. Not so HRW or its IJP; and yet throughout WTE, the only history that is recounted for future generations is one of countless criminal acts perpetrated by ethnic Serbs. WTE shapes this version of history by reference not to the work of historians, but to the charges and the language adduced by ICTY indictments.[133]
For WTE, the record is not weakened by the Serb-only focus and political aims and structuring of the trial. Nor is it damaged by the fact that the ICTY corrupted the record by allowing hearsay evidence, anonymous testimony, closed sessions, the use of unauthenticated evidence such as illegal interceptions of telephone conversations or diaries that witnesses transcribe from memory; and frequently refused to allow full cross-examination of prosecution witnesses.[134] When NATO's wartime General Wesley Clark testified, strict limits were placed on the questions Milosevic could ask him, and the ICTY permitted the transcript of his testimony to be redacted by U.S. officials, contrary to the ICTY's own rules.[135] When Milosevic cross-examined William Walker, a career U.S. Foreign Service Officer who as head of the Kosovo Verification Mission during the pre-war period was suspected of working at cross-purposes with it, and promoting a war-agenda, the court placed a three-hour limit on Milosevic, and Judge May interrupted him “over 60 times,” while never once interrupting the Prosecution.[136] In one remarkable instance, Milosevic asked Presiding Judge Richard May, “are you prohibiting me from calling in question or challenging the credibility of this witness?” And May replied: “Yes, I am. Now, move on.”[137] When Milosevic was questioning former U.S. Ambassador to Croatia Peter Galbraith about his and U.S. co-responsibility for the ethnic cleansing of Krajina Serbs during Operation Storm—a point well-established in the historical record[138]—Judge May declared that this was “a preposterous question” and terminated the inquiry.[139] This trial was engaged in no truth-search under May’s and the ICTY’s auspices.
WTE continues the HRW double standard of allowing NATO to do things for which it condemns Serbia . As noted, the main thrust of WTE is its attempt to summarize the ICTY's records that show that Belgrade provided both the Bosnian and Croatian Krajina Serbs with financial, material, and administrative support.[140] But the United States supplied weapons, training, logistic and diplomatic support to the Bosnian Muslims and Croats; and it created a network for the delivery of weapons and Mujahadeen to the Bosnian Muslims from foreign states such as Iran and Saudi Arabia[141]—all in violation of a Security Council “embargo on all deliveries of weapons and military equipment to Yugoslavia.”[142] These U.S. actions which would seem to be the counterpart of those engaged in by Serbia somehow fall out of the HRW-WTE orbit of the condemned; only one side is guilty of supplying arms and of keeping the war going. Thus, in an Orwellian process, the crime of aggression, which both the ICTY and HRW purport to exempt from their human-rights and war-crimes province, is allowed to come to life when the Belgrade Serbs allegedly do it, and WTE is indignant over this further example of Serb perfidy, although in this case the “aggression” occurred within a disintegrating Yugoslav state and, hence, was civil warfare. On the other hand, massive U.S. support for the Bosnian Muslims and Croats is exempted from the term here, just as the ICTY (and HRW) exempted from any condemnation the 1999 U.S. and NATO attack on Yugoslavia , which was a pure example of aggression across internationally recognized borders.
In portraying the Milosevic trial as “groundbreaking” and a “watershed moment for justice,” WTE states that “With the establishment of the International Criminal Court, no government official, on the basis of his or her position, is beyond the law. The time when being a head of state meant immunity from prosecution is past.”[143] This is untrue. Like the ICTY Statute, the Rome Statute that created the ICC also exempts the “supreme international crime” from its jurisdiction, so U.S. invasions in violation of the UN Charter are beyond the ICC's reach, and U.S. Government officials enjoy complete immunity from prosecution for acts of aggression.[144] Nowhere does WTE mention that the United States refuses to join the ICC, and in fact has formally notified the UN Secretary-General and ICC that it “does not intend to become a party to the treaty,” and therefore “has no legal obligations arising from its signature on December 31, 2000.”[145] What is more, the United States has exploited Article 98 to reach bilateral agreements with over 100 different states, securing their pledges never to surrender U.S. citizens to ICC custody, or to transfer U.S. citizens to states that have not reached similar agreements with the U.S.[146] This behavior, and the different U.S. treatment of the ICTY, might plausibly be seen as based on lesser U.S. power over the ICC as compared with the U.S.-controlled and properly ”politicized” ICTY, points not in accord with WTE and HRW biases.
Trying to suggest an even handedness on the part of the ICTY, after having had to concede that many Serbs were ethnically cleansed from Croatia in 1995, and suffered from “violations of international humanitarian law” in Bosnia as well, WTE notes that these “are the subject of ICTY proceedings.” WTE supports this assertion with footnotes that refer to three additional ICTY cases: Prosecutor v. Ante Gotovina et al. (Croatia), Prosecutor v. Oric (Bosnia), and Prosecutor v. Naletilic and Martinovic (Bosnia).[147] What neither text nor footnotes point out, however, is that only the Serbian head of state, Milosevic, was brought to trial, in accord with the Serb-oriented priorities indicated by U.S. officials from late 1992 onward, just prior to the creation of the ICTY in 1993.
The massive trial of Milosevic, with 295 witnesses and 49,191 pages of testimony, failed to produce a single credible piece of evidence that Milosevic had ordered any killings that might fall under the category of war crimes. But the so-called Brioni Transcript of talks that Croatian President Franjo Tudjman held with his military and political leadership on July 31, 1995, show Tudjman instructing his military leaders to “inflict such a blow on the Serbs that they should virtually disappear.”[148] What followed in Operation Storm in the next month was a massive blow that made the Krajina Serbs “virtually disappear.”[149] Imagine the windfall that a statement such as Tudjman’s would have provided Carla Del Ponte, Geoffrey Nice, Dermot Groome, and HRW, had it been Milosevic instead who uttered a statement linking him directly to criminal activity of this magnitude! But Tudjman was a U.S. ally, and Operation Storm was approved and aided by the United States and some of its corporate mercenaries.[150] As Chief Prosecutor Del Ponte explained in an address before Goldman Sachs-London, “These crimes were committed in the course of a military operation, undoubtedly legitimate as such, aimed at re-taking the part of the Croatian territory which was occupied by Serb forces.”[151] That its clear purpose and result was a major ethnic cleansing is covered over by making it merely a “military operation” that is “legitimate as such,” while avoiding the critical language reserved for Serb military operations.
Were the ICTY honest in its devotion to justice and accountability—and not a political-public relations-”judicial” arm of NATO—then not only Tudjman, but also Bill Clinton, Madeleine Albright, Richard Holbrooke, and Peter Galbraith would have been indicted as “co-perpetrators” of a “joint criminal enterprise,” the clear purpose of which was the forcible and permanent removal of the majority of ethnic Serbs from large areas of Croatia. But given political realities, Del Ponte finds Operation Storm “legitimate,” and Tudjman would die in bed unindicted, while his co-perpetrators never would be brought to trial either. In the judgment of the ICTY as well as HRW, they were all too busy bringing “justice and accountability” to the Balkans!
But don’t the indictments of the Croatian General Ante Gotovina and the notorious Bosnian Muslim fighter Naser Oric show that the ICTY is even-handed? No, they do not. Gotovina's indictment was not publicized until shortly after the kidnapping of Milosevic, almost surely as a public-relations demonstration of the ICTY’s even-handedness.[152] This was necessary, given the scale of Operation Storm—ignoring it altogether would have been an admission of extreme bias, perhaps too much even for the ICTY to manage. Not only was Tudjman never indicted, in a kindly gesture Carla Del Ponte informed Croat leaders of the still-sealed indictment of Gotovina, giving other Croats time to wash their hands of Gotovina and Gotovina a chance to flee—a gesture that is never extended to Serbs, where very frequently the target of the secret indictment has been seized in raids by NATO troops.[153] Nevertheless, the Croats have been very angry with the ICTY for “betraying” them in the interest of apparent balance, especially in light of the fact that the patron of the ICTY (the United States) was itself an active participant in Operation Storm, and Gotovina’s counsel is sure to raise this close alliance if Gotovina is ever actually tried.
In the case of Naser Oric, it took the ICTY a decade before it got around to indicting him,[154] although his murderous record was clear and the videos he showed reporters of his beheaded Serb victims had belonged to the public record, along with much other evidence, for the entire period. Furthermore, the indictment charged Oric only with abusing eight prisoners, although the evidence of his command-role in hundreds of killings of civilians was solid and long known. His term of imprisonment was modest, although he was an active and direct killer who as General Philippe Morillon said in his testimony to the ICTY, didn’t take prisoners (i.e., he executed all captives).[155]
The key legal concept used by the ICTY to deal with Milosevic’s alleged criminality over not only Kosovo but also—belatedly— Croatia and Bosnia , is the “joint criminal enterprise” (JCE). This concept does not appear in the ICTY Statute or in law tradition—it was an original concoction to fit the needs of this trial. WTE states that “A joint criminal enterprise is a doctrine of liability whereby the accused is individually responsible if he acts in concert with others pursuant to a common criminal purpose with the same criminal intent.”[156] In the ICTY version, the individual doesn’t have to jointly plan with his fellow criminals, and doesn’t even have to know what they are doing, let alone control their activities. The common purpose can be inferred from the fact that they are all fighting a common enemy, and those doing so are collectively guilty. The common “criminal purpose” can even be imputed from this—in the Milosevic trial the alleged quest for a “Greater Serbia,” which can be inferred from the efforts Milosevic made to help Serbs who were losing the protection of a Yugoslav nation to join together in a lesser entity. Thus, if Milosevic was despised by the Bosnian Serbs for his willingness to accept a string of proposed agreements that would have left them outside Serbia, and for even imposing a boycott on them to induce them to sign one such agreement,[157] and the Croatian Serbs were furious at him for failing to help them as they were ethnically cleansed under Operation Storm, still he was occasionally supporting them, along with the Serbs in Kosovo. Hence he was guilty of acting in concert with these other Serb leaders.
It is obvious that this wonderfully expansive concept makes soldiers who are part of an army engaged in warfare potentially all guilty of being members of a joint criminal enterprise, and they have been found collectively guilty, but only when the Serbs do it.[158] Laughland points out that a strong supporter of the Tribunal, William Schabas, “has ridiculed ‘JCE’ as standing for ‘just convict everyone.’”[159] Thus, as we have pointed out, there could be no clearer case of JCE than the commonly planned and executed Operation Storm, as well as the JCE of NATO leaders in attacking Yugoslavia in violation of the UN Charter. These are a much better fit to the JCE concept than the case against Milosevic. But in these cases NATO or NATO allies were doing the killing or cleansing, so that in this Alice-in-Wonderland tribunal’s quest for justice, while the JCE doctrine is perfectly applicable to these major cases in logic, it does not apply in practice. WTE does not have a word of criticism of this doctrine. Nor does it advance any reason of its own to accept it, other than the fact that the Prosecution happened to make it,[160] and the Appeals Chambers ultimately accepted it.[161]
WTE displays its bias further by alleging Milosevic’s “frequent courtroom grandstanding,”[162] a charge that the establishment narrative has always used to help explain the length of the trial as well as to denigrate the villain. Carla Del Ponte’s periodic wild public statements condemning the man still to be tried, or her appearance before Goldman Sachs-London, begging for money on the grounds that ICTY-style justice will help create a favorable climate of investment,[163] and her apologetics for Operation Storm, are of course unmentioned.[164] The repeated showing of a BBC film The Death of Yugoslavia, “on which the prosecution relied very heavily to make its case” (Laughland), is ignored, and WTE fails to note the numerous times that Geoffrey Nice orated at length without relevance to the charges—Laughland points out that in his opening statement, Nice “had a highly emotive and unverifiable story about a baby crying itself to death during the Bosnian war, absurdly claiming that ‘of course’ Milosevic knew about this.”[165] Nice was given a free hand, while Milosevic was subjected to a stream of interruptions and arbitrary cut-offs by an extremely hostile and impolite Judge May.[166] Most important, May allowed the prosecution to bring on a vast number of witnesses and “experts” offering hearsay or irrelevancies at great length. This resulted from the fact that this was a highly political case, not one dealing with soldiers committing war crimes (the main thrust of laws of war), with the Milosevic indictment almost surely extended to Bosnia and Croatia for fear that with Kosovo alone it would be difficult to answer why NATO’s war crimes in its bombing war did not constitute a “joint criminal enterprise” as much as the Serb war that followed the NATO attack. But the prosecution had not tied Milosevic to the Bosnia/Croatia wars previously, and were grievously unprepared in this political proceeding in which they found guilt first—in fact, knew it back in 1992!—but then a decade later still struggled to find the evidence.
(3 - continues)
Endnotes to Part 3
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