SND SYMPOSIUM part 2

The Hague:
Justice or Politics?

This is the second in a series of articles on The Hague Tribunal based on the papers presented at the SNO/Liberty symposium on March 24th, 2001. Ambassador Bisset, who has replaced Sir Alfred Sherman as Chairman of The Lord Byron Foundation, is a retired Canadian diplomat who represented his country in Yugoslavia at the beginning of its disintegration..

By James Bisset

Carla Del Ponte, the Chief Prosecutor of The International Criminal Tribunal for Yugoslavia [ICTY] has been making strident demands that former Yugoslavian President, Slobodan Milosovic, be handed over to her so that she might put him on trial before the War Crimes Tribunal in The Hague. NATO countries, led by the United States, have been vocal in insisting that Milosovic be surrendered to the court. The Western media and human rights groups have also demanded that he face the Tribunal.

It will be difficult for the new democratic authorities in Yugoslavia to refuse to do so. Economic and financial help to rebuild what the NATO bombing has destroyed will undoubtedly be conditional on cooperation with the Tribunal. Indeed the United States has made it clear that if Milolosovic is not arrested and tried for war crimes, the 100 million dollars in US aid to Yugoslavia will be held back. In addition, the US will block loans to Yugoslavia by the World Bank and the International Monetary Fund. This kind of international blackmail will be hard for the new democratic regime in Yugoslavia to resist.

Despite the blow to Serbian national pride and the obvious insult that is being added to the injury suffered by Yugoslavia as a result of the illegal bombing of the country by NATO forces, it is likely that the blackmail will succeed. Moreover, there are many Serbs in addition to his political enemies who would be happy to see the end of the man many hold responsible for the disasters that has overtaken Yugoslavia since 1990.

Nevertheless, it would appear that the President Vojislav Kostunica has serious misgivings about the independence and impartiality of the Hague Tribunal. He is not alone in this. From its inception there has been doubts about the legitimacy of the Tribunal. It was not established by treaty or by the General Assembly of the United Nations as would normally be required for such a court. The Security Council alone established the Tribunal and only after heavy lobbying by the government of the United States. Whatever the legitimacy of the Tribunal, there is strong evidence to suggest the Tribunal was established more to satisfy political goals than to bring war criminals to justice.

Certainly the performance of the Tribunal so far has displayed more of the characteristics of a medieval Star Chamber than an independent judicial body. A number of those who have been secretly indicted by the Tribunal have been kidnapped by armed thugs and transported against their will to The Hague to wait in detention for months or years for trial without benefit of bail. They are then required to face unknown and often hidden accusers before a Tribunal that acts as both prosecutor and judge. There is no jury. If the prisoner confesses while in custody, the confession is presumed to be voluntary. The trial may even be held in secret.

The Tribunal had a firm policy not to reveal the names of those on its indictment list. Yet Louise Arbour, the former Chief Prosecutor violated this policy when she publicly announced the indictment of Milosovic during the NATO bombing of Yugoslavia. There seems little doubt the announcement was timed to bolster sagging public support for the bombing. After all, who would dare oppose the bombing of a country whose leader had been indicted as a war criminal? That Louise Arbour would violate the Tribunal's policy is not surprising. Her appointment to the Tribunal was conditional upon receiving the personal approval of Madeline Albright.

It is also significant that the indictment against Milosovic did not include crimes he might have committed during the Bosnian conflict but was confined to allegations about crimes in Kosovo. It would not do to have the man Madeline Albright hailed as, " a man of peace,"at the time of the Dayton Accords, indicted for crimes in Bosnia after he had played such a pivotal role in bringing about an end to the bloodshed there.

At the center of the indictment against Milosovic was the infamous "Racak Massacre," alleging that Serbian security forces had murdered in cold blood forty-five Kosovo Albanian civilians. Madeline Albright has described the "Racac Massacre" as the galvanizing event leading to the air war against Yugoslavia. However, the conclusive report finally published last month by the Finnish forensic experts who examined the bodies of the alleged victims confirms what many suspected at the time- that there was no evidence to show the bodies discovered in the shallow trench by United States general William Walker were executed at close range. It seems the victims were armed members of the KLA who were killed in the fighting that had taken place in the hills above Racak the day before. Their bodies had been placed in the trench to simulate a massacre. This would suggest that at least some of the evidence against Milosovic presented by the United States to the Tribunal to support his indictment has been fabricated.

It is significant that the North American media has remained conspicuously silent about the Finnish team's conclusions. The European media has given wide coverage to the story. No questions have been asked of General Walker or Madeline Albright and it is unlikely that any will be. The incident that sparked and justified the NATO bombing cannot be revealed as a fraud to a complacent and trusting North American public.

Article sixteen of the statute that established the War Crimes Tribunal stipulates that the Prosecutor "shall not receive instruction from any government or any other source." Yet the record of close cooperation between the Tribunal and the government of the United States suggests this article has not been respected by the Tribunal. Moreover although it is the United Nations that was to finance the Tribunal it is in fact United States money that has enabled the Tribunal to carry out its operations. In any other respected court of law such an arrangement would be unthinkable on the grounds of compromising the independence of the Tribunal.

The Tribunal has also been remarkably selective about who it has indicted. Almost all those so far indicted have been Serbs. Only a very few Muslims have been brought before the Tribunal. The notorious Naser Oric has not been indicted. He was the leader of the Muslim paramilitary forces in Srebrenica who used this UN safe haven as a base to raid neighboring Serbian villages and butcher all of the elderly inhabitants who were unable to flee. Oric has openly boasted to journalists of these atrocities and they are well documented. In fact, he has proudly shown to Western journalists, a video he had made of some of his headless victims- but the Tribunal has done nothing about this. Oric is managing a bistro in Tuzla numbering among his customer's UN peacekeepers.

The Srebrenica massacre alleging that over 8000 Muslim men and boys were slaughtered in cold blood by Serbian forces has been one of the central showpieces of the War Crimes Tribunal. The figure of 8,000 victims was first mentioned on September 13, 1995, by Angelo Gnaedinger, the Western European Director of the International Committee of the Red Cross {ICRC] after a visit to Srebrenica where he interviewed 200 Muslim prisoners. Mr. Gnaedinger stated that 3,000 Muslims had been taken prisoner by Serbian forces in Srebrenica and a further 5000 had fled to central Bosnia after the city had fallen. Two days later on September 15, the New York Times reported that the ICRC had confirmed that 8,000 Muslims were missing from Srebrenica!

Since the New York Times story, the figure of 8,000 Muslim men and boys "massacred by the Serbs" has taken on a life of its own and despite challenges from a number of sources the mainstream media in the West continues to repeat the figure. Nor has the War Crimes Tribunal ever attempted to set the record straight. It accepted the allegations from the outset. It did so despite any hard evidence other than hearsay information provided by claimed eyewitnesses and documentation promised to be forthcoming from United States sources. The documentation from the United States has never been produced.

The most notorious eyewitness, Dragan Erdemovic, claimed to have been a soldier in the Serbian forces that over ran the city. He said that he had participated in the shooting of 1200 Muslims in a field near Pilice. He volunteered this information to the Tribunal but it made no attempt to verify his allegations and later brought charges against Erdemovic himself. He revealed that he had joined the Croatian Council of Defense [HVO] in Tuzla, and had participated in crimes against Serbian villagers early in the fighting but later went over to the Serbian side. Erdemovic confessed to committing crimes and therefore as is the practice of the Tribunal his confession was automatically accepted at face value. There was no formal trial and no material evidence or cross examination to prove or disprove his story.

Another eyewitness to the alleged massacre in Srebrenica was Mevludin Oric who gave evidence before the Tribunal claiming to have seen Muslims executed by the Serbian military. It was later discovered that he was a relative of the notorious Naser Oric. Embarrassed officials at The Hague asked him not to make public the fact that he had appeared before the Tribunal but he later granted an interview to a Croatian magazine and so the story was revealed. So much for the reliability of eyewitnesses appearing before the War Crimes Tribunal.

For over three years forensic experts searched for the 8,000 bodies alleged to have been slaughtered in and around Srebrenica. Over 1000 bodies have been found but we know nothing about who they are or how they met their deaths. These experts have testified before the Tribunal but the Tribunal has revealed nothing about what was discovered. Why has the Tribunal not made public the forensic team's findings? Why have the United Nation's files relating to Srebrenica been classified as "secret" and not available for public disclosure? It is not because the Tribunal avoids publicity. On June 21, 2000,the Chief Prosecutor of the Tribunal traveled to Kosovo and was pictured in an Associated Press photo looking at a coffin being removed from a "mass grave site" in the village of Quirez in central Kosovo. No one questioned why the victim of a mass gravesite would have been buried in a coffin and no one questioned why the Chief Prosecutor would seek to have photos taken at the alleged site of a mass grave in Kosovo.

Another individual well known to the Tribunal is Agim Ceku, an Albanian from Kosovo, who led the Croatian forces that in September, 1993 overran Serbian villages in the Medak pocket being protected by Canadian peace keepers. After a firefight, the Princess Patricia's Canadian Light Infantry retook the villages only to find that dreadful atrocities had been committed against Serbian civilians. Two years later Agim Ceku led Croatian forces in the infamous "Operation Storm," that "cleansed" Croatia of its entire Serbian population. The Tribunal has not indicted Agim Ceku. On the contrary, NATO has rewarded him by appointing him commander of the Albanian security forces in Kosovo.

The most serious charge against the War Crimes Tribunal has been its adamant refusal to indict NATO leaders for violating international law and the United Nations Charter by waging aggressive war against a sovereign state without UN approval. Repeated demands by eminent lawyers from around the world have been in vain. This almost frivolous dismissal by the Tribunal of charges that NATO is guilty of the most serious war crime of all - the waging of aggressive war - should be adequate proof that the Tribunal is not a serious court in pursuit of justice but rather a political tool of the United States.

Despite the overt and public admission by NATO Supreme Commander, General Wesley Clark, that NATO switched to civilian targets when it became evident that air strikes were unable to inflict damage on the Serbian military, the Tribunal refuses to listen. The Tribunal has refused to consider that the bombing of civilian targets, the employment of weapons containing depleted uranium and the use of cluster bombs is a crime.

Yet the Tribunal continues to receive the almost unanimous support and adulation from Western politicians, NGO's and the media. None of these expressed concern that NATO totally ignored the United Nations Charter in it's bombing campaign against Yugoslavia but they are quite prepared to place faith and almost reverence on one of it's most questionable subsidiary organs-The War Crimes Tribunal for The Former Yugoslavia.

It may well be that former Yugoslav President Milosovic should face a trial. Nevertheless, it will be unfortunate that -should Yugoslavia be forced to hand him over to The Hague - it will be seen as an endorsement of a Tribunal that represents everything that an independent international court should not be.

ICTY is a "tribunal" in name only, in reality a political instrument dominated and paid for by its political masters. It has been a Tribunal that by any standard of measurement has been a travesty of justice. It has been a Tribunal that has sacrificed basic principals of law and due process to act as a willing tool for the achievement of US political goals and as an apologist for NATO's political blunders in the Balkans.