Balkan Express
by Nebojsa Malic

November 14, 2000

Wheels of Injustice

As recently as two months ago, then-presidential candidate Voyislav Koshtunitsa denounced the International Criminal Tribunal for the former Yugoslavia (ICTY) as a political tool lacking any legitimacy.

Last week, President Koshtunitsa and his Foreign Minister agreed that ICTY will be allowed to open an office in Belgrade and investigate "war crimes" that occurred on Yugoslav territory or were committed by Yugoslav citizens.

As anyone who knows any Serbian history might imagine, Prime Minister Nikola Pashich and King Petar I are rolling over in their graves right about now. Such an outright violation of Serbian sovereignty is precisely why they rejected the Austro-Hungarian ultimatum in 1914, resigning themselves to a war that crippled the Serbian nation for the rest of the century. The current government is seen as the restoration of justice and honor in Serbian politics akin to King Petar’s restoration of 1903. Yet by allowing the ICTY to set up shop in downtown Belgrade, they are spitting on King Petar’s memory and dishonoring themselves.

Well, history is history, some will say. One cannot always be consistent. Besides, ICTY is a legitimate, UN court that was set up to punish those responsible for horrific atrocities of the 1990s Balkans wars; it was recognized in the 1995 Dayton Agreement as such, and Serbia is one of the agreement’s co-signers. Koshtunitsa has an obligation to cooperate with the Tribunal, regardless of what he thought of it. Politics is the art of the possible, and right and wrong have little to do with it.

As usual, nothing can be farther from the truth.

In the beginning, there was a name. Officially, the court is called "The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1 January 1991." Unofficially, the media and politicians who created it have adopted a shorter, catchier name: The Hague Tribunal, or just The Hague. Though located in the administrative capital of the Netherlands, ICTY can hardly claim to be the international court there. That honor belongs to the officially established UN International Court of Justice, or ICJ. Many journalists, politicians, pundits and even critics of the ICTY have mistakenly identified it with the ICJ. Needless to say, this association bolsters the legitimacy of the ICTY on one hand, and erodes the reputation of the ICJ on the other.

For while ICJ is a truly legitimate court, set up to adjudicate disputes between states, ICTY is a body formed in clear breach of authority by the UN Security Council. Instead of going through the General Assembly, which would require ratification and compliance with the UN Charter and numerous tenets of international law, the United States used the Security Council, invoking the UN Charter’s Chapter VII, Article 29. That article states: "The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions." So ICTY is by definition a subsidiary organ of the Security Council, not an independent judiciary body. On top of this, Chapter VII only gives the Security Council powers to deploy peacekeeping forces in war zones at the request of member states. It is one thing to send troops; setting up an Inquisition-style court is quite another.

The Tribunal’s purpose is, after all, the prosecution of war criminals. Its rules of procedure are designed so that the prosecution dominates the process. The prosecution and the judges are on the same payroll, and work together. The chief prosecutor plans and issues indictments as part of a concerted effort to prove the existence of "genocide" in the former Yugoslavia. Defense attorneys, on the other hand, are completely out of the loop. Each works for his own client, and they often end up trying to blame some other defendant.

According to the Tribunal’s procedures, defendants are guilty until proven innocent. Prosecutors, judges and the media do not mention "defendants" but "indicted war criminals." This clever wordplay has observers halfway convinced from the start that the men in question are guilty. Indictment has become the mark of guilt. The same prison is used for housing the defendants before, during and after the trials.

Most "evidence" presented in the court consists of witness testimonies. Since the witnesses are all anonymous and the defense is not allowed to cross-examine them, their statements cannot be verified or challenged in court. Yet if the defense cannot prove the witnesses are lying, their statements are considered to be factual truth. When the defense does succeed in challenging witness statements, the prosecution simply disavows the witness and carries on. In any US court, a fake witness would be enough for a jury to have reasonable doubts and dismiss the charges. Not in ICTY, though. There, there is no jury. The defense has to prove innocence to judges paid by the same people who pay the prosecutors. How likely are they to disagree with the prosecution? The prosecutors are the real judge, jury and executioner, all in one, accountable to no one under the sun.

A notable example is the case of Dragan Opachich, a Serb soldier captured by the Muslim army in Sarajevo in 1993. He was "Witness L" at the trial of Dushan Tadich, a Serb accused of running a death camp at Trnopolye. When Tadich’s defense attorney discovered that Opachich was beaten by the Muslim secret police and forced to testify against Tadich (falsely, since he never saw the man before the trial) Justice Gabrielle Kirk-McDonald of the United States ordered Opachich returned to Bosnia – back into the custody of Muslim secret police, the AID. He languishes in the notorious Zenitsa prison, without any hope of parole or release. No human rights group, no lawyer, no international legislative initiative in Bosnia has ever agreed to hear his case. The living proof of ICTY’s corruption and duplicity, Opachich is Bosnia’s Man in the Iron Mask. His only crime is knowing too much about his persecutors.

As for Tadich, he was sentenced to 20 years. When he tried to appeal, the court added new accusations to his indictment and sentenced him to life. Such is justice in the Tribunal chambers.

There are hundreds of other examples of mistreated defendants. People indicted for political purposes, kidnapped from their homes in the middle of the night, shot while "trying to escape," found hanging in their cells, held until their cancers and heart diseases finished them off – these are the "war criminals" ICTY is supposed to prosecute. Not one inmate of Scheveningen dungeons has been proven a war criminal beyond reasonable doubt.

So what? Legitimate or not, ICTY is still recognized as part of the Dayton agreement, and Koshtunitsa’s government is obligated to respect Dayton and the peace it brought to Bosnia, the argument goes. As usual, it is mistaken. Koshtunitsa is president of Yugoslavia, not Serbia. When the Dayton agreement was signed, the United States was not recognizing Yugoslavia as a state, so Slobodan Miloshevich signed the pact on behalf of Serbia. Technically, the president of Serbia is still Milan Milutinovich, at least until December 23rd this year. As president of Yugoslavia – which is not a party to the Dayton Agreement, and is not bound by its articles – Koshtunitsa can very legitimately refuse to cooperate with ICTY. Whoever becomes the president of Serbia on December 24th will have to deal with that particular problem. Until then, the government of Yugoslavia is not authorized to do so. Of course, this is legalese. Everyone knows that Miloshevich really run both Serbia and Yugoslavia in 1995. But that is beside the point. Like all international agreement, Dayton is not about common sense but about legal categories. It is definitely open to interpretation, as Bosnia’s foreign governors have done repeatedly over the past five years.

Then there is also the issue of peace in the Balkans depending on the war crimes trials. This is nonsense, as is the theory that ICTY is eliminating collective guilt by prosecuting individuals. Quite the contrary, the notion of collective guilt of their enemies is deeply rooted in the minds of all warring parties, and every new indictment by ICTY reinforces that notion. ICTY successfully refutes its own statements by prosecuting people on the grounds of command responsibility. If war crimes in the Balkans were really committed by individuals, why then is ICTY trying to present them all as having been masterminded by Miloshevich and his government? Wouldn’t that implicate the entire Serbian people, who elected this government repeatedly and thus have partial responsibility? And yet, the indictments were supposed to exonerate the Serbian people? This logic is insane.

Those who survived the wars want justice and vengeance. Those who have been abused and oppressed under certain political leaders indicted by ICTY are all too happy to see them taken to Scheveningen in chains. Croatia’s new regime seems all too happy to send many of its military officers into the jaws of ICTY. This is often used as an argument that Croatia’s new leadership is democratic, and that Yugoslavia needs to do the same. Conveniently forgotten is the fact that Croatia’s "war criminals" are mostly loyal to late president Tudjman’s HDZ, and that for the new president, Stipe Mesich, this is just a splendid opportunity to conduct a political purge of Tudjman supporters without any blood on his hands. Of course, Mesich and his government are perfectly comfortable with the fact that the Tudjman regime killed or expelled all Serbs from the territory of today’s Croatia, and have no intention of disavowing these actions, or offering reparations to their victims. ICTY takes care of Tudjman’s skeletons in the closet, Croatia gets to continue being an ethnically pure state, and everyone’s happy but the Serbs – whose leaders are all indicted by ICTY, by the way.

And if all this is not proof enough – or at least reason for some serious thought – that something is deeply rotten in The Hague, here is one last and crucial piece of the puzzle. Prima facie proof that ICTY is nothing but a political tool of The Great Power, as Voyislav Koshtunitsa once used to say.

In May of 1999, as hundreds of civilians were dying under NATO bombs in a clear-cut war of aggression against Yugoslavia (which NATO leaders admitted, but said it was justified by the "genocide" in Kosovo – another charge refuted soon thereafter, but too late to do any good), ICTY indicted the five top leaders of Yugoslav government for war crimes. The indictments came at a time when NATO was failing to win the war and desperately needed a legitimacy boost. After the armistice in June, several organizations presented evidence to ICTY prosecutors requesting an investigation into the NATO aggression. Facing an outburst of rage from NATO leaders, the prosecutors responded by hastily concluding that there were no grounds for even investigating NATO for war crimes. Just so that it is entirely clear, ICTY’s chief financial contributor (i.e. paymaster) is the US government. US forces led, masterminded, and executed 90% of the NATO aggression on Yugoslavia. It is a little hard to expect US leaders to indict themselves. Politics is, after all, the art of the possible.

What that has to do with justice is beyond my comprehension.

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