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Media and new humanitarian normalization of victor's justice
Despite the overwhelming politicization and abuse of judicial process that has characterized the International Criminal Tribunal for the Former Yugoslavia (ICTY, or Tribunal) from its inception, discussed in Part 1, the Western new humanitarians (David Rieff, Michael Ignatieff, et al.) and mainstream media have taken its work as entirely principled and truth- and justice-seeking. Demonization, an intense focus on worthy victims, and an automatic acceptance of official perspectives, quickly creates a consensus “truth” that is protected by repetition and an avoidance of incompatible information. Everybody can then repeat the established line and anybody who contests it becomes an “apologist for Milosevic.”
Several dozen new humanitarians have played a major role in selling the official line. They have uniformly accepted the ICTY as a legitimate judicial body dispensing justice. For Aryeh Neier, president of the Open Society Institute (funded by Soros), establishing the Tribunal was “the most important step by the United Nations to protect human rights since it adopted the Universal Declaration.” The claim that the Tribunal is a “tool of the U.S.” he dismisses as unworthy of refutation (WP, May 5, 1998; NYRB, March 8, 2001). Neither Neier nor any of the new humanitarians discuss the significance of the Tribunal's NATO-power origination, purpose, funding, and staffing; its less than stellar adherence to western legal standards; or its service as NATO's public relations arm. Their assumption of the benevolent purposes of NATO's leaders and of the unique villainy of NATO targets precludes critical analysis.
Michael Ignatieff says, “The great virtue of legal proceedings is that their evidentiary rules confer legitimacy on otherwise contestable facts,” but he never examines the evidentiary rules of the Tribunal or evaluates the criticisms made of them; he knows a priori that it does not dispense “victor's justice” (Harpers, March 1997; “NewsHour With Jim Lehrer,” May 31, 2000). Apart from expressing approval, neither Ignatieff nor his comrades discuss the Tribunal's indictment of Milosevic on May 22, 1999, while NATO was bombing Yugoslavia. This remarkable politicization of an alleged judicial body did not bother the new humanitarians, nor did the Tribunal's refusal even to investigate the numerous claims of NATO law violations. Yale law professor Ruth Wedgwood, who misleadingly calls Del Ponte the “internationally appointed prosecutor of war crimes,” praises Del Ponte's report in which she declines even to open an investigation as “carefully done,” resting on “emerging” standards of law, and recognizing that “there is uncertainty and indistinctness in targets” in a “humanitarian intervention” (Fox News, June 16, 2000). Having taken sides, no rationalization is too absurd; the asserted moral ends justify the means.
The politicization of the Tribunal serves the new humanitarians well. They regularly cite its findings as definitive confirmation of what they want to prove in their campaigning. For David Reiff, the Tribunal indictments of Karadzic and Mladic “FOR GENOCIDE” (his emphasis) show what a determined West could have done at any time to bring justice to the Balkans (Slaughterhouse, 1996). For Ian Williams, Carla Del Ponte's estimate of probable killings in Kosovo is the final authority that “should have put questions concerning the death toll to rest” (Knight-Ridder/Tribune, Nov. 23, 1999). Rieff points out that national sovereignty no longer protects human rights abusers, “as Slobodan Milosevic learned when at the height of the Kosovo conflict, he was indicted for war crimes by an international tribunal at the Hague” (World Policy Journal, Summer 2000). Rieff takes it for granted that this indictment was carried out by a dispenser of justice—its public relations service to NATO during the NATO bombing of Serbia is unmentioned, perhaps never even strikes this war enthusiast and propagandist.
A Prosecutor's Dream Team
The preeminent feature of media coverage of the Tribunal has been their uncritical following of the U.S. official and Tribunal prosecutor lead in reporting and interpreting the Tribunal's work. They simply take Tribunal actions, usually the indictment or seizure of some preferred (Serb) villain, report the prosecutor's charges in detail and without challenge, provide no critical historical context, and never analyze the selectivity in choice of villain or the political context of the Tribunal's work.
>From the beginning the media have never asked basic questions: Does the Security Council have a legal right to establish a judicial body like the tribunal? Do the funding, staffing, and police service of NATO entail NATO influence or control? Do the dominant members of the Security Council, who also dominate NATO, have political goals that might compromise the judicial efforts of a Tribunal?
Instead of addressing these questions the media have assumed that justice was being served, with the benevolent NATO properly, perhaps belatedly, trying to bring “another Hitler” to justice. But such assumptions violate the principles of objectivity whose use supposedly differentiates a free from a totalitarian press. It will not do to say that “in this case” the truth was obvious, because the truth should always be kept open to question—and the media have repeatedly gotten on similar bandwagons of “obvious” truth that turned out to be untrue (the KGB-Bulgarian connection to the shooting of the Pope in 1981, the Soviet's deliberate shooting down of Korean civilian airliner 007 in 1983, the latter later admitted by the New York Times to have been “The Lie That Was Not Shot Down” [editorial, January 18, 1988]).
The media occasionally touch upon the problem areas, but they fail to acknowledge their relevance and importance and, instead of building on the challenging information they quickly move on. Jamie Shea's NATO press conference statement of May 17, 1999, that NATO had no worries about prosecution by the Tribunal because the NATO powers finance the Tribunal and the prosecutor does only “what we allow her to,” was entirely ignored by the U.S. mainstream media, despite its clear assertion of Tribunal subservience to external political control.
On National Public Radio (NPR), the issue of whether NATO could be prosecuted for war crimes came up on “All Things Considered” (March 24, 2000), but the program dealt only with U.S. officials' annoyance at the question, and the resultant possible straining of relations between the United States and the Tribunal. U.S. officials pointed out that the Tribunal “depends heavily on the United States for funding, personnel, and the collection of evidence,” and that raising the question of NATO crimes had led to U.S. authorities already “putting bureaucratic obstacles in the way of Tribunal requests.” With only U.S., NATO, and Tribunal officials commenting on the issue, its scope was narrow, and the NPR reporters did not ask what kind of justice results from a judiciary so dependent on an interested power.
This same bias pervaded the coverage of Del Ponte's June 2000 decision to exonerate NATO from war crimes charges without even opening an investigation. The major New York Times article on this decision was entitled “Kosovo Inquiry Confirms U.S. Fears of War Crimes Court” (Steven Lee Myers, January 3, 2000). In keeping with its title, the article did not discuss the evidence of NATO war crimes, which Canadian law professor Michael Mandel presented to Del Ponte in three large volumes, nor does it examine the basis on which Del Ponte refused to investigate as laid out in the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign (OTP Report). The article focuses instead on theoretical U.S. vulnerability to war crimes charges. An AP report from the Hague (“U.N. Court Examines NATO's Yugoslavia War,” NYT, December 29, 1999) notes that even if evidence of NATO law violations was found, “it is questionable whether Ms. Del Ponte...would go so far as to issue any indictments. The handling of the report is a delicate matter for the tribunal, which depends on the military alliance to arrest and hand over suspects.” But there is no suggestion that this dependence compromises the judicial character of the tribunal.
Even more explicit in NATO- friendly framing is AP's January 4, 2000 report “White House Blasts Kosovo Inquiry,” which features “Washington's patience” being exhausted at these Tribunal provocations, its view that an inquiry would be “completely unjustified” (White House spokesperson), the awkward position of Del Ponte in trying to avoid charges of pro-NATO bias, and a number of citations to NATO spokespersons on NATO's innocence—but not a word on the charges against NATO and the supporting evidence. Charles Trueheart in the Washington Post did quote Michael Mandel making a general case against NATO (“Taking NATO to Court, Tribunal Reviews Professors' Charging That Alliance Committed War Crimes,” January 20, 2000), while giving NATO and the prosecutor equal space and the last word. Trueheart cites NATO officials saying “they had been assured by Ms. Del Ponte that she would not carry the exercise far,” and that assurance was fulfilled.
The media's coverage of the NATO “inquiry” and exoneration comprised a few back-page articles, far less coverage than given indictments of even low-level Serbs. The media never compared the speed with which charges were made that served NATO, based on NATO-supplied information, with the inability to decide the NATO case for many months despite massive information in the public domain (summarized in Mandel's three-volume dossier). The fact that Milosevic was indicted for “crimes against humanity” based on 375 deaths, whereas according to the OTP Report “there is simply no evidence of the necessary crime base” with 500 NATO-caused deaths, failed to attract the media's attention. There was not a single citation by the media to the report used by the prosecutor, which relied on NATO press releases as authoritative sources and gives solid evidence of pro-NATO bias, as demonstrated by Mandel. The reporters were too lazy and biased to examine this readily available document.
The Racak “Massacre”
By January 1999, the United States and NATO were ready to attack Yugoslavia and the United States was looking for a casus belli. The death of some 40-45 Albanians in the Racak area on January 15 was therefore greeted happily in Washington. Many questions have been raised about this incident: the Serbs had invited both OSCE monitors and journalists to witness their assault on this KLA stronghold, A.P. photographers were on the scene, and French reporter Christophe Chatelet, who arrived in the village after the fighting, found the site calm, OSCE observers helping some elderly people but telling Chatelet that nothing important had happened. There were no signs of a massacre. After the report of a massacre, Chatelet and Figaro reporter Renaud Giraud insisted on seeing the A.P. photographers' tapes of the day's events, which again showed nothing supporting the claim of a massacre.
After the KLA reoccupied the village, the next morning 40 bodies were on display, U.S. officials immediately claimed a massacre, and Tribunal prosecutor Louise Arbour rushed to proclaim a war crime.
The U.S. media also rushed to give the incident intense and indignant coverage. The New York Times, Washington Post, Los Angeles Times, Time, and Newsweek supplied 40 often lengthy articles over the next ten days. All regurgitated U.S., NATO, and Albanian claims of a slaughter of civilians. For Steven Erlanger, Milosevic “has thrown down the gauntlet to the West” by organizing a massacre (NYT, January 21, 1999). Erlanger and his colleagues never mentioned the findings of the French journalists who were on the scene, looked at the A.P. tapes, and expressed serious doubts in Le Figaro and Le Monde. The U.S. reporters failed to question the AP photographers present at Racak on January 15 whose documentation of the events there has since been kept under wraps. They did not interview the OSCE observers who were at Racak by invitation that day, even after U.S. and OSCE official William Walker admitted that the observers had not witnessed a massacre (Watson, LAT, January 20, 1999). They never asked why the Serbs had failed to remove the bodies, but left them for Walker to find and put to work for NATO.
The U.S. media claimed that the massacre was an embarrassment to U.S. officials and NATO—e.g., “The Serb dictator understands well that NATO has little appetite for involvement in another Balkan conflict” (WP, ed., January 20, 1999). However, British journalist Allan Little quoted Madeleine Albright as saying to National Security Adviser Sandy Berger, after hearing of the alleged massacre, “Spring has come early” (“How NATO was sucked into the Kosovo conflict,” Sunday Telegraph [London], February 27, 2000).
William Walker, the OSCE official who had hastened to the scene and claimed an atrocity, not only had a conflict of interest as a U.S. representative, he was a Reagan era apologist for Salvadoran army atrocities. Although the European press frequently mentioned his bias and European officials' annoyance at his compromised behavior as head of the OSCE observer mission, the U.S. media took at face value his stance of being “visibly shaken” at the Racak death scene (e.g., Guy Dinmore, WP, January 17, 1999), and never mentioned his conflict of interest or tainted record. Although the Jesuit Order had publicly opposed Walker's nomination as U.S. Ambassador to Panama, “based on his alleged complicity in [and role in the coverup of] the November 1989 assassination of [six] Jesuit priests in El Salvador” (Inter Press Service, June 28, 1993), Paul Watson of the Los Angeles Times said only that “he was chief of the U.S. Embassy's political section in El Salvador [and] ambassador from 1988 to 1992" (LAT, January 20, 1999); and for Jane Perlez, he was merely “a seasoned diplomat” (NYT, January 17, 1999).
The bodies at Racak were quickly subjected to a forensic examination by Serb and Belarus specialists, in coordination with a Finnish team sent by the European Union. Professor Dusan Dunjic, of the Institute of Forensic Medicine in Belgrade, who was one of the investigating team, says that 37 of the 40 bodies showed traces of gunpowder on the hands, indicating that before death the individuals had handled firearms; that the bullet wounds were in different parts and sides of the bodies and had been inflicted from different directions; and that although in civilian dress, many had identical black trousers and other clothing designed for long wear out-of-doors.
The U.S. media never talked with Dunjic or his colleagues and relied only on the frequently ambiguous statements of the head of the Finnish delegation, Dr. Helen Ranta, who was a dentist and not a forensic expert. Her most often quoted words were that Racak was “a crime against humanity.” She continued by saying that “all killings” are crimes against humanity. This followup statement, which made the first statement meaningless, was never quoted.
The Finnish study of the massacre has never been made public, which suggests that it fails to support the official story. The U.S. media have not found this secrecy worth mentioning. In January 2001 three of the Finnish experts published their findings in Forensic Science International (J. Raino, K. Lalu and A. Penttila, “Independent forensic autopsies in an armed conflict: investigation of the victims from Racak, Kosovo,” 2001). Although lacking in explicit conclusions, the article made clear that the bodies had been shot from many different directions as Dudjic had stated, and suggested doubts about a massacre. Deutsche Press-Agentur's article summarizing the report is titled “Finnish experts find no evidence of Serb massacre of Albanians” (January 17, 2001). No major U.S. publication ever mentioned this study, despite their prior intense focus on Racak.
In Louise Arbour's indictment of Milosevic, the Racak massacre is the only pre-bombing charge. The media, having raised not a single doubt about Racak, naturally never questioned it as a basis for the indictment. When Arbour had sought to join William Walker at Racak, the media's sole preoccupation then was Milosevic's denial of entry to Arbour and threat to expel Walker. Paul Watson quoted James Rubin on the unacceptability of “the Serbs interfering with monitors bravely trying to do their work” (LAT, January 19, 1999). Milosevic had the strange notion that Walker and Arbour had a political agenda in which he was the target. Serving on the same team as Walker and Arbour, the media never hinted at this possibility.
The Arkan Indictment
On March 31, 1999, a week after NATO began bombing Yugoslavia, Tribunal prosecutor Louise Arbour announced the indictment of Serb paramilitary leader Arkan, which had been secretly issued in September 1997. The timing of the announcement was alleged by Arbour to be based on the desire to put on notice anyone who “might retain his services or obey his orders.” Marlise Simons and Charles Trueheart in the NYT and WP both reported the Tribunal explanation (April 1, 1999) and NATO's “welcoming” the indictment, but neither pointed out that the rationale was silly, nor did they hint at the public relations service to NATO in focusing public attention on Serb evil.
There were 11 articles on the Arkan indictment in my five media sample in the ten days after March 31, more than double the number on the refusal of the Tribunal even to investigate NATO war crimes. It is enlightening also to contrast the media's treatment of Arkan and Nasir Oric, the Bosnian Muslim paramilitary killer, who had bragged to Western journalists about his slaughter of Serbs in and around Srebrenica, and who was at least Arkan's equal as a mass murderer of civilians. But the West supported the Bosnian Muslims, so Oric was never indicted by the Tribunal and the media coverage of this criminal was negligible. During the period from January 1, 1992 through December 31, 1996, Arkan was mentioned 150 times in my media sample, 60 times in the New York Times. During the same period Nasir Oric was mentioned only three times, not once in the New York Times. Equally interesting, while Arkan was always described with adjectives like “notorious” and “monstrous” and nouns like “massacres” and “ethnic cleansing” (Charles Trueheart, WP, February 1, 1999), on the rare occasions when Oric was mentioned those words were missing. Thus, John Pomfret, although noting that Oric's “war trophies” included videotapes of “burned Serb houses and headless Serb men, their bodies crumpled in a pathetic heap,” describes Oric only as “the toughest guy in town” and “a lion in his den” (WP, February 16, 1994).
The Milosevic Indictment
With NATO's bombing of Serbian military forces in Kosovo not yielding an early surrender, NATO started to bomb the civilian infrastructure of Serbia. These attacks were contrary to the laws of war and were producing growing criticism even within the NATO countries. Into this public-relations breach stepped Louise Arbour and the Tribunal, with a patched together indictment of Milosevic and four other high Yugoslav officials, publicly announced on May 27, 1999.
In an outstanding example of parallel media propaganda service, not a single news or opinion piece in the 32 published in my media sample during the ten days after May 27, even noted, let alone criticized, that the Tribunal was gearing its work to accommodate NATO's public relations needs, although several mentioned that it did seem to justify NATO's war, and several quoted Albright as saying the same thing. Many articles focused on whether the indictments might hamper ongoing peace negotiations, but not one questioned the appropriateness of a supposed judicial body issuing indictments that would have immediate political consequences.
Apart from the three or four citing Serb and Russian opinion, no article criticized Arbour, who was portrayed as a gallant believer in justice. In a later accolade to Arbour, Marlise Simons allowed Arbour to state her reason for indicting Milosevic in May—“we might miss out” on getting him as a result of a peace deal—but Simons did not mention that there might be an alternative view, and she spoke only of the indictment as “now seen as a tribute to the tribunal's firmness” (“Proud but Concerned, Tribunal Prosecutor Leaves,” NYT, September 15, 1999). In many articles Arbour was described as in frequent conflict with NATO, which had been allegedly dragging its feet in apprehending the villains that Tribunal justice had indicted. Arbour's statement accompanying the indictment, that indicted individuals are “entitled to the presumption of innocence until they are convicted,” was immediately contradicted by her remark that the current indictment “raises serious questions about their suitability to be guarantors of any deal.” These statements, which effectively declared Milosevic guilty by indictment before conviction, were never cited by the media.
The media regularly noted that Arbour depended on classified NATO evidence for the indictments, but they never pointed out that this evidence had not been independently confirmed by the Tribunal, or that its supplier had a conflict of interest. The media, like NATO and Arbour, knew in advance that they were dealing once again with “another Hitler” so that the sole question was efficiently bringing him to book—there was no concern about niceties like due process and conflict of interest.
Thus, in contrast with the media's treatment of the charges against NATO, here the media offered voluminous and uncritical summaries of the charges, with gory details, along with half-baked and error-laden “background.” Apart from a few articles that gave brief contrary views from Belgrade and Moscow, the only dissent allowed was that the Tribunal's action had been too slow.
The Seizure of Milosevic
When the Tribunal organized the kidnapping of Milosevic to The Hague, once again the media and Tribunal worked harmoniously in NATO's service. The media treated this process intensively and as a triumph of justice, epitomized by the title of Time Magazine's article “Bagging the Butcher,” and Newsweek's reference to Milosevic as “our postmodern Eichmann” (both on April 9, 2001). The media prejudged the case, with vast assurance and matching indignation, parroting the lines taken by the Tribunal prosecution, themselves identical with the position taken by Madeleine Albright and her associates.
Milosevic was spirited away secretly in defiance of the wishes of the relatively popular President of Yugoslavia, Vojislav Kostunica, and an order of the Constitutional Court, by a leader (Zoran Djindjic) who, while “pro-American,” had “fairly low popularity ratings” (Jeffrey Smith, WP, June 30, 2001). It was treated as a romantic escapade, with Djindjic the brave hero. That this kidnapping was done under financial pressure from the United States and other donor nations was viewed as entirely reasonable. None of my major media sample reported Djindjic's anger when he discovered that most of the donor money from selling Milosevic went to liquidating Yugoslavia's foreign debts.
A few articles noted that forcing the extradition in the face of Yugoslav law and a court order might not help Yugoslavia recognize the importance of the rule of law. A number noted that the extradition was strongly opposed by many in Yugoslavia and might create political turmoil and destabilize the fragile new democratic government, but this view too was exceptional. None of the media noted the fact that Madeleine Albright had earlier explained that it would be inappropriate to pressure the Indonesian government to seek war crimes trials against Indonesian war criminals because it might destabilize the new, fragile government of that country.
In The Hague Milosevic faced an expanded indictment, that now included his alleged responsibility for Serb crimes in Bosnia and Croatia. John Laughland has pointed out that this expansion “is in direct contradiction to one of the most fundamental principles of customary extradition law, namely that a defendant may not be tried for a crime other than the one for which he was originally sent for trial” (“Victors' Justice,” The Spectator [London], February 9, 2002]). This point was never made in the major U.S. media.
Laughland notes also that, as the expanded indictments cover matters now seven to ten years old, which had produced no indictments earlier, “It seems obvious that these last-minute indictments over Croatia and Bosnia were issued to cover up the weakness of the Kosovo indictment. And the judges have connived in this.” The U.S. mainstream media have never made these points either.
Prosecutor Del Ponte openly admits that, despite the age of those earlier events, she is busy collecting data for the new charges, thereby acknowledging that indictments precede evidence, not vice versa as in a genuine court. This abuse replicates Arbour's in May 1999 when she rushed to indict based on unverified evidence from a party to the conflict (NATO), eager for a propaganda boost. Now, as in May 1999, the U.S. mainstream media don't notice.
The Hague trial of Milosevic is a show trial, like the Moscow trials of 1936-1937, with a demonized villain on stage whose certain conviction will vindicate the NATO war and interventions. After this service, the Tribunal can be dissolved, and the United States is now urging its near-term liquidation.
Toronto lawyer Edward L. Greenspan writes in Canada's National Post (March 13) that “The first two minutes of the Milosevic trial told me all I needed to know. This is a lynching.” Greenspan points out that in her opening statement prosecutor Del Ponte claimed to be working “on behalf of the international community and in the name of the member states of the UN”—in Greenspan's words “Prosecutor for the Universe.” Judge Richard May didn't object, probably because “he actually believes her. May knows what the world expects of him and this trial.” Greenspan also asks: how can justice be done in a court presided over by a NATO-country judge, and especially one who “clearly reviles Milosevic?”
Greenspan points out further that, as Milosevic has opted to defend himself and is not very sophisticated in cross-examination and court-room practice, a fair judge would lean over backwards to help him—but May constantly presses Milosevic to be quick and not to bully witnesses, although bullying and pressure are, as Greenspan stresses, common, acceptable, and important courtroom practices.
Milosevic is also at an informational disadvantage. An incarcerated individual, with some links to his home country, versus NATO. The recent arrest of U.S. diplomat (and CIA official) John David Neighbor along with Serbia's deputy prime minister Momcilo Perisic, apparently involved a U.S. effort to obtain secret documents that would help the Tribunal prosecutor link Milosevic to war crimes in Bosnia (“Political tension brews in Belgrade over spying row,” Agence France Presse, March 19, 2002). The U.S. media, however, never acknowlege an informational and resource imbalance. They have even suggested that Milosevic may have an unfair informational edge via associates back home, as compared with poor NATO and the Tribunal, who complain of the foot-dragging of Yugoslav officials in producing incriminating evidence. No mention is made of the new dependence of Milosevic-free Yugoslavia on financial aid from the NATO powers, and the leverage this gives for compelling the turning over of suspects, potential witnesses, and information, in further arm-twisting operations like the one employed in forcing the extradition of Milosevic.
May allows prosecution witnesses to testify at length about personal experiences, usually without supportive and verifiable evidence, and even to recite hearsay experiences. In Mahmut Bakali's testimony (February 18, 2002), the witness cited what a local Serb official claimed to have heard that Milosevic might have said about Kosovo— twice-removed hearsay—without judicial interference. The media did not notice or object.
In his opening presentation Milosevic showed the court some gruesome videotapes of Serb victims of NATO bombing. The media do not ask why Milosevic's evidence is less proof of war crimes and genocide by Clinton and Blair than the current Tribunal witnesses prove Milo- sevic guilt. That comparison would show both political selectivity and the essential irrelevance of this kind of evidence, except to show that war is ugly and—for the purposes of this trial—to produce a desired moral environment that will sustain a conviction.
When Marlise Simons interviewed and wrote about Carla Del Ponte, who claims to “represent the victims” (“On War Criminals' Trail, An Unflagging Hunter,” NYT, February 9, 2002), Simons did not ask her: what about the Serb victims in Bosnia, Croatia, and those massively “ethnically cleansed” in NATO-occupied Kosovo? Why does the “unflagging hunter” not fulfill her legal obligation and go after NATO's war criminals? Simons avoided such questions, in this interview and in her numerous articles in the New York Times, just as her colleagues failed to ask about the “evidence” that the KGB and Bulgarians were behind the shooting of the Pope in 1981, or did not pursue the “lie that wasn't shot down” regarding the Soviet downing of Korean airliner 007. Her job is to go with the flow of propaganda that, as NATO demands and the Tribunal implements, has targeted Milosevic as the latest villain, whose conviction will demonstrate Western justice, brought to the world by the rulers of the New World Order. Z
Edward S. Herman is an economist and media analyst.
Part 3 covers the Tribunal and media “truths.”