The Milosevic Trial, Part 1

Some Tribunal Context

Mother and Father, Albright and Kinkel, Define Its Purpose. The original drive for the Tribunal was led by German foreign minister Klaus Kinkel, who pushed for it as early as August 1992, and quite explicitly wanted it to prosecute the Serbs for “genocide.” His role in initiating the Tribunal led its first president, Antonio Cassese, to refer to Kinkel as “the father of the tribunal.”

Gabrielle Kirk McDonald, Cassese's successor as president, noting that Madeleine Albright had “worked with unceasing resolve to establish the Tribunal,” referred to her as “mother of the Tribunal.” The man who wrote the Tribunal's Statute for Albright, Michael Scharf, spoke frankly about its political purpose: The Tribunal was “widely perceived within the government as little more than a public relations device and ...useful policy tool.... Indictments...would serve to isolate offending leaders diplomatically...and fortify the international political will to employ economic sanctions or use force” (Washington Post, October 3, 1999). Note the proposed role of indictments, which would serve political ends prior to a trial and verdict, in contradiction to Western principles of jurisprudence.

Dubious Legality. The Security Council had no legal basis under the UN Charter for establishing a judicial body, but it ignored that nicety, claiming that Chapter VII, which granted it the right to “take measures” and “establish subsidiary bodies” in the interest of maintaining “peace and security,” gave it that authority. This legal trick circumvented the need to get non-NATO countries to accept the new judicial body, and it has the advantage that all countries are obliged to accept enforcement actions taken under Chapter VII. The argument was made that the Tribunal's actions taken on the basis of this judicial authority would “deter” evil men and prevent war, but not only is this claim simple-minded, the record shows that the Tribunal facilitated NATO's pursuit of war.

Funding and Personnel. Although Article 32 of the Tribunal's charter says that Tribunal expenses should be provided from the general budget of the UN, this proviso has been violated continuously, and the Tribunal has had to depend on U.S. and other governmental funding, the solicitation of George Soros and other interested private donors, and “seconded” personnel from (mainly) the NATO powers. In 1994-1995, the United States provided the Tribunal with $700,000 in cash, $2.3 million in equipment, and many seconded personnel, while failing to meet its legal funding obligations to the UN.

This funding dependency not only makes for external control, it also permits the funders to direct Tribunal operations in ways that suit their immediate political aims. Thus, for example, the Clinton administration found $27 million during the bombing war to enable the Tribunal to collect data on Serb war crimes from Albanian refugees. (Gilbert Guillaume, President of the International Court of Justice [ICJ], speaking on October 26, 2000 before the UN General Assembly, noted that the ICTY gets ten times as much money as the ICJ, and he suggested that this was because various parties engage in “forum shopping,” or even create new forums, that will be “more amenable to their arguments.” He suggested that it was not compatible with good judicial practice that courts should be “made subject to the law of the marketplace.”)

A large fraction of the personnel of the Tribunal are from the NATO states, and many of these come from the United States and Britain; in mid-1996, 23 of the 52 “seconded” staff came from the U.S. Departments of State, Defense and Justice. Top choices of Tribunal officials are vetted by leaders of the dominant states. Those who serve well, like former prosecutor Louise Arbour, are rewarded for this service (she was quickly selected to be a Justice of the Canadian Supreme Court). Others merely return to former jobs that should, in fact, have disqualified them from Tribunal service: Gabrielle Kirk McDonald, former president of the Tribunal, had been a director, and has returned as “Special Counsel to the Chairman on Human Rights,” of Freeport-McMoRan Copper & Gold Inc., a notorious human rights violator working in West Papua with the cooperation of the Indonesian army.

When Milosevic was indicted in May 1999, Dr. Hans Koechler, president of the International Progress Organization (an NGO), noted that all high officers of the Tribunal were citizens of the NATO states or their allies (Australia). He asked whether an institution that observed legal norms of impartiality would not have found a “conflict of interest for ‘judges' from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating ‘judicial' action against the head of state of the country under attack?”

Contractual Relations With NATO. On May 9, 1996, the Tribunal's prosecutors signed a memo of understanding with NATO that made it the official Tribunal gendarme. However, Article 16 of the Tribunal's charter states that the prosecutor shall act independently and shall not seek or receive instruction from any government. But the prosecutor cannot act independently if dependent on specific governments for financing, personnel, and police service. And the Tribunal's prosecutors have not acted independently, as described below.

During the bombing, NATO public relations spokesman Jamie Shea was asked about NATO's vulnerability to Tribunal charges. He was not worried. The prosecutor, he said, will start her investigation “because we will allow her to.” Further, “NATO countries are those that have provided the finance,” and on the need to build a second chamber “so that prosecutions can be speeded up...we and the Tribunal are all one on this, we want to see war criminals brought to justice.” When Arbour “looks at the facts she will be indicting people of Yugoslav nationality and I don't anticipate any others at this stage” (NATO press conference, May 17, 1999).

Explicit Service to NATO. A major service to NATO took place at the time of the Racak “massacre” in January 1999. Albright and her associates were then readying NATO and the public for a war against Yugoslavia, and needed public relations support. When it was reported that Kosovo Albanians had been killed at Racak, U.S. official William Walker rushed to the scene and declared it an “unspeakable atrocity.” On the very next day Tribunal prosecutor Louise Arbour declared at a press conference that she was opening an investigation into this crime. Within four days, having consulted only NATO officials, she declared this to be a “war crime.” This declaration helped publicize the alleged crime, and although the facts in the case were and remain in dispute, and the forensic report on the massacre remains unreleased by the OSCE, this massacre was listed in the May 22, 1999 indictment of Milosevic and his colleagues.

Then, on March 31, 1999, one week after NATO bombing began, Arbour announced the indictment of Serb paramilitary leader Arkan for crimes committed in Bosnia, which she had prepared two years before but had kept secret until NATO needed public relations cover for its bombing.

The most dramatic Tribunal service to NATO took place two months later. NATO had found that the Serbs were not surrendering to air attacks on their military forces, so NATO therefore turned to attacking the civil society, hitting bridges, factories, electric power and water facilities, and even schools and hospitals. These attacks were clear violations of international law—the Sixth Nuremberg Principle bars targeting “not justified by military necessity”—and were causing a certain stir of opposition even in the NATO countries. With perfect timing, on May 27 Arbour announced the indictment of Milosevic, based on data about alleged Serb killings provided by U.S. intelligence but otherwise unconfirmed. This enabled Albright to note that the indictments “make clear to the world and the publics in our countries that this [NATO policy] is justified” (May 27, 1999), facilitating further bombing—and further NATO violations of international law.

At the same time Arbour explained that, while individuals are “entitled to the presumption of innocence until convicted,” the indictments “raise serious questions about their suitability to be guarantors of any deal, let alone a peace agreement.” The prosecutor thus took on the role of “surrogate politician” (Koechler), announcing her own political determination that Milosevic was to be ruled out as a negotiator. On many other occasions, indictments were used by the Tribunal to criminalize and effectively remove individuals from the negotiating process. Milosevic had to depend on the Russians to negotiate on Yugoslavia's behalf to end the bombing war, and Bosnian Serb leaders Karadzic and Mladic were also removed from any diplomatic process in Bosnia by indictments. By this route, also, all were effectively demonized before trial and conviction, and any NATO violence was justified in the public relation/media forum by Tribunal indictments.

Exemption of NATO War Crimes. NATO had conveniently excluded from the war crimes subject to Tribunal jurisdiction what Robert Jackson at the Nuremberg trials declared to be the worst crime: waging a war of aggression. NATO could therefore attack Yugoslavia in violation of the UN Charter without thereby automatically committing a crime subject to Tribunal authority. Nevertheless, Article 5 of the Tribunal's charter did make illegal “crimes against humanity,” which includes “murder” and “other inhumane acts;” and Article 3 includes “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering,” and “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings,” etc. Articles 1 and 16 of the Tribunal's governing statute oblige it to prosecute any such illegal actions.

How Arbour and Del Ponte wriggled out of even investigating NATO's war crimes, and the contrast with their rapid service for NATO, is amusing in the grossness of the difference between the two. Canadian law professor Michael Mandel describes how in May 1999 he and a group of lawyers from North and South America filed a well documented war crimes complaint against 68 NATO leaders, and traveled to the Hague to make the case to Arbour and her successor Carla Del Ponte; and “like literally thousands around the world, we demanded that Arbour and Del Ponte enforce the law against NATO” (“Politics And Human Rights In The International Criminal Tribunal For The Former Yugoslavia: Our Case Against NATO And The Lessons To Be Learned From It,” Fordham International Law Journal 25: 95-128 [2001]). He eventually gave up when it became clear “that the tribunal was a hoax.” It took Del Ponte more than a year to announce, on June 2, 2000, that NATO was guilty of no crimes, “and that (rather illogically) she was not opening an investigation into whether they had committed any” (ibid.). At that point she released a report of her Office of the Prosecutor (OTP), openly based on the belief that “NATO and NATO countries' press statements are generally reliable and that explanations have been honestly given” (Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign... UN Doc. PR/PIS/ 510-E [2000], available at www.un.org/icty/ pressreal/nato061300.htm [hereafter OTP]). The OTP noted however, that NATO sometimes refused to answer (“failed to address the specific incidents”); in which case, NATO not wanting an investigation, the OTP chose to not look any further and simply dropped the subject. How is that for an independent judicial assessment?

In the indictment of Milosevic, Arbour used evidence about events that took place only six weeks earlier from a war zone, provided by an interested party (NATO). But neither she nor Del Ponte could even “open an investigation” on NATO, after a year, with overwhelming evidence in the public domain on NATO actions that had killed many more than the numbers presented in the initial Milosevic indictment. That indictment and charge of “crimes against humanity” was based on an alleged 385 killings; but the OTP report found that 500 deaths attributable to NATO were too few to rate—“there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity.”

In examining possible NATO war crimes, time after time the OTP would consider the evidence and then choose an interpretation favorable to NATO, as in the bombing of Serbian broadcasting facilities, or simply decide arbitrarily that since “another interpretation is equally available” no investigation is needed (this in reference to NATO's bombing of a train on a bridge at Grdelica Gorge). Michael Mandel gives a number of illustrations of this mode of exoneration, which as he says “comes as close as possible to being an actual NATO press release that might have been issued by Jamie Shea or James Rubin.”

After Del Ponte took over from Arbour, she announced that her first priority would be to gather more evidence on Milosevic, implicitly conceding that she didn't have enough, but once again making clear her NATO-service priorities.

Explicit Direction to Serbs; Exemption of Croats and Bosnian Muslims. From the very first, the Serbs were the NATO target, hence that of the Tribunal. As early as 1991 German foreign minister Kinkel was accusing the Serbs of “genocide,” and in December 1992, just as the Tribunal was in process of formation, Acting U.S. Secretary of State Lawrence Eagleberger also publicly named four Serb leaders, Milosevic, Radovan Karadzic, Mladic and Arkan, as the targets of the Tribunal. Tribunal president Gabrielle Kirk McDonald referred to Serbia as a “rogue state,” and another Tribunal president Antonio Cassese expressed gratification that “indictments” had made it impossible for Serb leaders to participate in negotiations. (Cassese was not bothered by this abuse of indictments as a political instrument.)

Most of the indictments were leveled against Serbs, and the double standard here was blatant. Serb paramilitary leader Arkan was indicted, but not his Bosnian Muslim counterpart Naser Oric, who had bragged to the media about his killing of Serb civilians. Serb leader Milan Martic was indicted in 1996 for launching a rocket cluster-bomb attack on military targets in Zagreb in May 1995, on the ground that the rocket was “not designed to hit military targets but to terrorize the civilians of Zagreb.” But the NATO cluster-bombing of Nis on May 7, 1999, which repeatedly hit a market and hospital far from any military target, produced no indictments. And the massive ethnic cleansing of Krajina by U.S.-advised Croatian forces in 1995, with many hundreds killed, led to no indictments until May 21, 2001, when Del Ponte, aggressively pursuing the new Yugoslav government to extradite Milosevic and other alleged war criminals, and apparently feeling a need to demonstrate her even-handedness, belatedly indicted a Croatian military officer. (Prior to May 2001, only Serbs had been indicted for war crimes in the Krajina region.)

Only Serbian leaders have been charged with “genocide” and top-down responsibility for the acts of subordinates. Numerous mass killings by Bosnian Muslims—including imported mujahedeen whose specialty was beheading civilian victims—and by the Croatian army and paramilitaries, never caused the Tribunal to use the word genocide or to attribute responsibility to Croatian president Tudjman or Bosnian leader Izetbegovic. And during her pretended look at NATO crimes, Del Ponte considered only the responsibility of NATO pilots and their immediate commanders, not the NATO decision-makers who decided to target the civilian infrastructure and population. The double standard here is dramatic.

Judicial Malpractice—Analogies With Soviet Practice in 1936-1937. Anybody reading Not Guilty: Report of the Commission of Inquiry Into the Charges Made Against Leon Trotsky in the Moscow Trials (1938), written by a group chaired by John Dewey, can only be struck by the frequent parallels between Soviet and Tribunal principles and court procedure. The commission stressed the public relations function of the Moscow trials and the “prearranged scheme” and plans to prove that a single bad man (Trotsky) was guilty. The commission argued that there was no real effort to establish truth, but merely to prove guilt. It stressed the self-interest of the accusers.

As regards specific procedure, the commission noted the scanting of the rights of the accused and defense, the dependence on accusations by those with a special interest, the absence of documentary evidence backing up accusations and the frequent use of documents that don't prove anything relevant. The commission also stressed the failure to provide context for statements, the failure to call important witnesses, and the failure to explore contradictions in the accusations.

All of these charges are applicable to the work of the Tribunal. As noted above, the public relations function of the Tribunal is clear and even acknowledged, as is its aggressive pursuit of the bad man guilty beforehand of genocide while allegedly trying to create a “Greater Serbia.” Also clear is the limited search for truth, as well as the self-interest of the NATO accusers.

As regards judicial procedure, the Tribunal is openly prosecutor friendly, oriented to “victims' justice,” and it gets money from the United States and Soros specifically allocated for the prosecution. The first Tribunal prosecutor, Richard Goldstone, stated that “The victims of the Yugoslav wars want legal vengeance,” and the victims “should decide what is appropriate.” And Goldstone never doubted that he knew which groups were victims and had a right to demand vengeance. As Diana Johnstone points out, “A ‘victim-centered' justice is extremely favorable to the prosecution and unfavorable to the defense.” Furthermore, “a victim-centered justice creates its own victims: those who are unjustly accused and who cannot be properly defended because fair and thorough defense may be rejected as an ‘insult to the victims'” (Deception and Self-Deception, Pluto, forthcoming). Under this system in the Tribunal, the defense has been given short shrift financially and in status and rights.

Furthermore, the detailed procedures are highly reminiscent of the Moscow trials. As in Moscow, there is a failure to separate prosecution and judge, confessions and hearsay evidence are acceptable, secret witnesses not subject to cross-examination are used regularly, confessions are presumed to be free and voluntary unless the contrary is established by the prisoner, there is no right to bail and a speedy trial, there is double jeopardy in allowing the prosecutor to appeal an acquittal and obtain a conviction on second try, there is no independent appeal body, and conspiracy claims are common and (as in one case) “lack of evidence can in fact be proof of conspiracy.” The Tribunal also changes its rules at its convenience, and is even proud of these tricks: “The Tribunal does not need to shackle itself with restrictive rules which have developed out of the ancient trial-by-jury system.” Finally, the Tribunal uses “sealed indictments” that its NATO enforcers can use to seize some unsuspecting victim for delivery to The Hague, again a throwback to Moscow methods. John Laughland has described the Tribunal as “a rogue court with rigged rules” (Times [London], June 17, 1999).

Purchase/Capture and Indictment of Milosevic. Del Ponte and the Tribunal put great weight on getting Milosevic to The Hague, to cap their service to NATO. In doing so they trampled on the rule of law in Yugoslavia—a constitutional court order had denied extradition—and they humiliated the newly elected President Kostunica, who had pledged to deal with any Milosevic law violations under Yugoslav law. Del Ponte and the Tribunal had been quite willing to let Croatia try its war criminals, but not Yugoslavia, even after its ouster of Milosevic and installation of a pro-Western regime.

In order to gain control of Milosevic, the Tribunal made a secret deal with Zoran Djindjic, the prime minister of Serbia, who arranged for the abduction and extradition in exchange for aid money, some $1.3 billion. In short the Tribunal and West bribed an official of Yugoslavia to violate its laws. Thereafter, Djindjic found that his bribe partners had misled him—to his annoyance, “suddenly we were informed that [of the first installment of 300 million Euros]...225 million Euros were being withheld for outstanding debts, [so]...the dying man gets the medicine, once he is dead” (Der Spiegel, June 16, 2001).

As noted earlier, kidnapping is standard Tribunal practice, usually linked to seizures under “sealed indictments.” Back in 1996, after Bosnian Serb General Djordje Djukic had been seized by Sarajevo authorities, in violation of the Dayton accord, he was illegally detained and interrogated by the Tribunal while dying of cancer, hoping to get him to incriminate high Serb leaders. (Then chief prosecutor Richard Goldstone thanked the Bosnian government for their illegal seizure, and proceeded to rearrange the rules so as to be able to hold him until close to his death, illegally.)

With Milosevic in The Hague the stage was set for the final Tribunal service to its masters. However, Del Ponte realizing that the actual indictment was thin, that Operation Horseshoe had been shown to be a NATO propaganda fabrication, that 11,000-500,000 people had not been murdered (some 3,000 bodies had been recovered from all sides), decided to enlarge it to put the onus of killings in Bosnia and Croatia on the head of the bad man. The new charge once again violated Western judicial norms: a fundamental principle of extradition law is that a defendant may not be tried for a crime other than the one for which he was originally sent for trial. But it was once again a fine analogue to the Moscow scheme of fitting the villain into a “historical connection” of villainy, while the other active participants in the historical events (Tudjman, Izetbegovic, Albright, Clinton) are vindicated by the staged trial.

Forecasting the Outcome

It is almost certain that Milosevic will be found guilty, because the Tribunal is a creation and servant of the NATO powers, has served NATO faithfully up to this moment, and will surely not let it down here when vindication of the NATO war is at stake. It has demonstrated repeatedly that traditional Western judicial standards will not stand in the way of serving its political ends.

It would, of course, be easy to gather and parade before a court the many Serb victims of the NATO bombing, of Croatia's Gospic massacre of September 1991 or the ethnic cleansing of Krajina in 1995, or of numerous Oric and mujahedeen massacres in Bosnia in the years 1992-95. And as much evidence of high level responsibility for these killings as will be mustered for the Milosevic case could be offered for the criminality of Clinton, Tudjman and Izetbegovic (among others). But that could only have happened if the Serbs had been victorious and needed a “judicial” vindication of their war. Losers must suffer victors' justice.

However, it is likely that Milosevic will not be found guilty of all 66 charges against him, but only enough to keep him in prison indefinitely and thereby vindicate the NATO war. The throwing out of some of the charges will demonstrate the unbiased character of the Tribunal. Marlise Simons in the New York Times recently cited the dismissal of charges against two Croatians as showing that the Tribunal is not biased (“An Unexpected Reversal Of War-Crimes Convictions,” NYT, October 29, 2001). Nobody had told poor Simons that Croatia is a NATO friend and that the Serbs are the enemy. Simons will surely find the elimination of some of the Milosevic charges equally telling of Tribunal integrity.                                                    Z

Edward S. Herman is an economicst and media analyst. His most recent book, co-edited with Philip Hammond, is Degraded Capability: The Media and the Kosovo Crisis (Pluto, 2000).

Part 2 describes how the media have ignored these inconvenient facts while blacking out all relevant critical context. Part 3 analyzes the institutionalized untruths that are Tribunal premises, and which pervade the media, from In These Times and the Nation to the New York Times, Washington Post, and CNN and network TV.