THE HAGUE TRIBUNAL:
Srdja Trifkovic
Not many eyebrows will be raised at the revelation that there is a prison, in a small foreign country, where you can be indefinitely incarcerated without trial, or where you can be delivered on the orders of an ad-hoc "court" which sets its own rules as it goes along - and sometimes issues warrants only after politically motivated arrests had been performed.
Some may be surprised, however, that this "far-away country" is not North Korea, Bourkina Fasso or Syria, but the civilized little Holland. The prison is in the North Sea resort of Scheveningen, a wind-swept mélange of belle époque hotels and 1960s tower blocks inhabited by ruddy-cheeked septuagenarians. The court in question is ten miles away, in The Hague, and it goes by the name of 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 - the Yugoslav War Crimes Tribunal for short.
The Hague has been the seat of the International Court of Justice since the early days of the 20th century, an institution distinguished by the attempt to apply Law to relations and disputes between nations and states. The city and the Court became intertwined, epitomizing a worthy legal tradition: the cases heard and its careful judicial rulings virtually defined international law. That Court never engaged in advocacy; it never demanded reprisals; it left the acceptance of its rulings to the parties involved; it allowed simultaneous representations to all sides in a given dispute; it did not argue its findings in public before or during judicial review. It was scrupulous in its respect for the sovereignty of states: the concept of international military intervention to enforce its rulings was utterly alien to it. In short, this Court was an anathema to any self-respecting globalist.
This tradition is now being destroyed by a pseudo-legal impostor - the Yugoslav War Crimes Tribunal - which was inserted deliberately into The Hague to provide the pretender with a legal and cultural pedigree, and at the same time to devalue the true legacy. It is as if Jimmy Swaggert set up shop in Rome, took a crash course in Latin, and took to wearing a mitre. This so-called tribunal uses legal language. It has jurists on its panels, and they are dressed in a bizarre imitation of Continental judicial attire. It has funds - lots of funds - but it is a fraud. Its origins, its mission, and its modus operandi constitute a naked assault on Law itself. The Yugoslav war crimes tribunal is a misnomer: it has proven to be neither a "tribunal" - a forum of impartial justice - nor is it concerned with "war crimes" - understood as gross violations of certain norms of war, regardless of the identity of culprits and victims. And so, after the decline of higher cynicism in the name Human Progress we now witness the ascent of higher cynicism in the name of Human Rights. It is the New World Order's posthumous tribute to the millenarian butchers of our century.
The Hague Tribunal was established by the Security Council of the United Nations in 1993 on the basis of Chapter VII of the U.N. Charter (Resolution 827), with the "jurisdiction" for crimes committed after January 1, 1991. I'll come to the legal significance of this in a moment; but let us first ask why only "the former Yugoslavia," and why only the past five years? The U.S. Ambassador at the United Nations, Madeleine Albright, offered the official Administration line when she declared that there is no more appropriate a place to discuss the War Crimes Tribunal for former Yugoslavia. The claim that the enormity of recent crimes in the Balkans sets them apart from all other wretched spots on our planet, and makes them comparable only to the Ultimate Horror of Auschwitz, has been repeated ad nauseam over the past decade.
This claim is not supported by evidence. Only since the end of World War II there have been well over one hundred million human fatalities due to war, genocide, democide, politicide, and mass murder. Pol Pot, Mao, Idi Amin, Kim Il Sung, and other lesser-known butchers from Rwanda to Bengal have done their worst. While democracies admittedly kill few of their own citizens, they are less restrained in killing foreign civilians in declared or undeclared wars, as any survivor of Hiroshima, or the fireballs of Dresden, Hamburg, or Nuremberg may tell you. We know now that the general strategic bombing policy of the Allies in 1942-45 was to carry out deliberate terror attacks against urban centers, with the not unexpected "colateral damage" in the destruction of priceless works of European art and cultural monuments. However, it may be years before we are told of the estimate for civilian deaths, in Hanoi in 1972, in Baghdad in 1991, or in Serbia in 1999. One may safely assume that there will never be any trials of the culprits, military or political
Compared to the horrors of Afro-Asian post-colonial killing fields, the war in the Balkans can be seen for what it was: a medium-sized local conflict. Comparisons of "Bosnia" to the Holocaust are false. It is legitimate to ask how many have actually died? Bill Clinton parroted the received wisdom when he claimed 250,000 dead in his speech to the nation in November 1995. But there is no empirical basis for this neat, round figure. Now, counting bodies is poor form, but it has to be done if we are not to assist further exploitation of lies and distortions for political purposes. According to the only serious study published on the subject so far, by George Kenney, former acting chief of the Yugoslav desk at the State Department, "Bosnia isn't the Holocaust or Rwanda; it's Lebanon". Kenney is adamant that the number of fatalities in Bosnia's war is between 25,000 and 60,000 on all sides.
Kenney and others have proven that the "Bosnian Holocaust" story was fabricated by the Muslim side as part of a wide-ranging and effective PR campaign, and eagerly embraced by their sympathizers in the media. In fact, after an initial bout of heavy fighting, from 1993 to mid-1995 there was a period of relative calm on most fronts in Bosnia, interrupted by brief outbursts in isolated localities, such as Gorazde and Bihac. Stories of mass murder and atrocities have not been substantiated even after sustained and well publicized digs in the area of Srebrenica. Had there been a slaughter on the alleged scale, there would have been fewer, rather than MORE voters - especially on the Muslim side - on the electoral roll in 1996 than in 1990. Even if the as yet unknown number of Serbs killed by NATO air power and the combined Croat-Muslim offensive in September 1995 are included, the war in Bosnia is unlikely to have resulted in more than 70 thousand deaths. Including Croatia/Krajina, AND Bosnia, AND Kosovo, the Yugoslav wars of 1991-99 have killed up to, but not more than, one hundred thousand people.
MYTH OF GENOCIDE IN KOSOVO
That last spring's NATO war against the Serbs was illegal, unnecessary and a failure is no longer an eccentric view from the margins. Hardly a week goes by without a respected mainstream institution, media outlet or individual joining the critics of the intervention. According to a recent pamphlet (Britain, Nato and Kosovo published by the Centre for Policy Studies in London), the war could not be justified on legal, moral or any other grounds. Its author, Mark Littman, argues that alliance members abandoned diplomacy at Rambouillet for non-negotiable demands which Yugoslavia could not have accepted. It quotes Henry Kissinger as saying: The Rambouillet text was a provocation, an excuse to start bombing. Mr. Littman, a barrister, says it is generally agreed that the use of force is prohibited unless in self-defense or under the authority of the UN Security Council. Neither reason was cited by the alliance; military action between March and June was justified on humanitarian grounds. We had to stop the genocide in Kosovo! - was the retrospective pretext for starting the war. It was repeated daily to justify the bombing and to divert attention away from Nato's own crimes. We've now seen about 100,000 military-aged men missing. They may have been murdered, U.S. Defense Secretary William S. Cohen said on CBS Face the Nation on May 16. But the first to come up with the nice, round figure of One Hundred Thousand was Mr. James (Jamie) Rubin. At a State Department briefing on April 19, talking of mass murder and of separating of men and boys, he said:
There are still 100,000 men that we are unable to account for, simply based on the number of men that ought to have accompanied women and children into Macedonia and Albania. Based on past practice, it is chilling to think where those 100,000 men are. We don't know, but we know that civilian casualties are the objective of President Milosević's policy.
As we now know the Kosovo genocide is the most outrageous lie of the year, perhaps the decade. It did not happen.* Richard Gwyn summed it all up in The Toronto Star (November 3 1999) under a self-explanatory title: No genocide, no justification for war on Kosovo. He reminded his readers of repeated US/NATO claims, made during the bombing, that the genocidal Serb forces had dumped some of the countless thousands of slaughtered Albanian civilians into the Trepča mine by trucks under the cover of darkness. That story was very big for a while: Trepča - the name will live alongside those of Belsen, Auschwitz and Treblinka, chortled The Daily Mirror. Giving the fib an aura of authenticity The New York Times claimed at the time that the residents on the edge of the mine reported an unusual, pungent bittersweet smell, which they assumed to be burning bodies. The corpses were supposedly thrown down the shafts, or were disposed of entirely in the mine's huge vats of hydrochloric acid.
On October 12 Kelly Moore, a spokeswoman for The Hague Tribunal, was compelled to admit that the investigators had found absolutely nothing at Trepča. There were not 1,000 bodies down the shafts. There were none at all, and the vats had never been used to dispose of human remains. Shortly afterward the tribunal reported on its work at the most infamous of all the mass graves of ethnic Albanians, at Ljubenić near the town of Peć. NATO officials had claimed that 350 victims had been buried there by the Serbs; five were actually found. Gwyn's conclusions are terse and categorical: we are dealing with a grotesque lie concocted to justify a war that NATO originally assumed would be over in a day or two. No genocide means no justification for a war inflicted by NATO on a sovereign nation.
The defensive posture of the establishment was obvious in the feeble claim by the editorialist of The Times of London (November 2) that ìthe actual number of civilians killed to scare the rest off is irrelevant; the prevention of mass murder and ethnic cleansing, on whatever scale, [sic!] remains a war aim of which Nato can be proud. Since this was an obviously desperate line, soon came the news that U.N. investigators have exhumed 2,108 corpses in Kosovo, but the true number of ethnic Albanian victims may be much higher, the chief U.N. [War Crimes Tribunal] prosecutor Carla Del Ponte said. (Reuters, November 10) But even those two percent of the originally announced total of bodies are highly suspect, as are all findings of the Hague Tribunal, inherently. Even assuming the investigators actually did find 2,108 bodies, two nagging questions remain: who are these dead people? And who killed them?
Spanish forensic scientists reported that about half the 187 bodies they autopsied were victims of NATO raids. Were other investigators also shown victims of NATO? By the same token, are we to assume that 1,000 or so of Del Ponteís dead are victims of NATO? What about KLA members and Yugoslav soldiers killed in legitimate fighting? Before the bombing the Western media often reported that 2,000 people on both sides had died in this civil war which began in February 1998. Are some, or all, of those people being counted by del Ponte? What about the hundreds of Serbs, and loyalist Albanians, killed by the KLA since the beginning of the NATO occupation in June: can Del Ponte and her investigators assure us that none of them are included in the figure of 2,108? She has provided no evidence of mass murder by Serbian forces before or during the NATO bombing. She has provided nothing at all. Her report was a feeble attempt to influence public opinion because the entire US/NATO justification for the war is falling apart.
It is unlikely, however, that we shall see prosecutions of NATO leaders for their war crimes any time soon. According to the UN press release which summarized the recent press conference given by Del Ponte on the occasion of her appointment as chief prosecutor for the Hague war crimes Tribunal (ICTY), NATO war crimes are not her priority. Asked if she intended to look into the possibility that NATO had committed war crimes, she said she had received many reports about such NATO intervention, and was looking very carefully at them. She would take a decision about that and make it public, but that was not her priority. Asked why not, she said her priority was the open inquiry she had found upon taking office.
That investigating NATO is not a priority is unsurprising, since the ICTY is not an impartial body. But Del Ponte's press conference on November 10 contained another interesting slip of the tongue that in itself gives the game away. According to The New York Times on the following day, Mrs. Del Ponte and her aides also noted that the tribunal's main job was not to take a census of the dead, but to prepare legal material to seek or extend indictments for war crimes against those most responsible for the abuses of the Kosovar Albanians. Now, imagine a domestic prosecutor admitting that the ethnicity of the alleged victim determined the priority that he assigned to the proceedings!* The ICTY will become independent and impartial when it starts a thorough, intensive, and high-priority investigation of the crimes committed by NATO in the bombing of Yugoslavia. A few other things will happen on that day. Brooklyn Bridge will go on sale, and Slobodan Milosević will concede electoral defeat to his political opponents after a fair campaign. And pigs will fly.
Let us conclude: Bosnia and Kosovo were a mess, Yugoslavia is a tragedy, but there was no "holocaust"! The war in ex-Yugoslavia was not "qualitatively" different from any other dispute between ethnic and religious groups over power and territory. So why the war crimes tribunal? Mrs Albright's answer is that "the U.S. Government does not believe that because some war crimes may go unpunished, all must." Needless to say, any determination of which ones should be punished - if left to the U.S. Government, and especially to THIS government - becomes not a legal, but a political decision. Susan Woodward of the Brookings Institution says that the Tribunal was pushed largely by the U.S. for political reasons: The accusations became a servant of American policy toward the conflict itself, which required a conspiracy of silence about parties which were not considered aggressors. The Serbs were to be pilloried, and the "Tribunal" was needed to give due legitimacy and pseudo-legality to that decision.
And pseudo-legal it was. The U.N. Genocide Convention could never provide the basis for the Tribunal. It is an international treaty, approved by the General Assembly and ratified by member-states, which does not endow the U.N. with radical new powers. In fact, the Security Council acted illegally in setting up the Tribunal; it had no authority to do so. The entire rationale behind the Tribunal is in clear violation of the Charter, which insists that the U.N. may not usurp the sovereign rights of states. Alfred Rubin, a professor of international law at Tufts University, shares this view, and warns that international war crimes tribunals are "unworkable" under most circumstances. No state or group of states can make law for another nation, Rubin says. That's neither good nor bad. It's inevitable. It's the way the legal order is structured. He asks:
Did states, when adhering to the U.N. Charter, envisage themselves re-creating the Holy Alliance, with the victors of World War II as the modern equivalent of Platonic Guardians, and the humanitarian laws of war as the set of substantive rules, adherence to which determines who should rule the units that comprise the international legal order?
The formal basis invoked for the Tribunal, Chapter VII of the U.N. Charter, deals with "threats to the peace, breaches of the peace, and acts of aggression" and, to meet them, it authorizes the U.N. to deploy the armed forces of its member-states in peacekeeping operations. It would take a very flexible legal mind indeed, to interpret this provision as carte blanche to investigate people, indict them, try them, find them guilty and keep them in prison.
It is noteworthy that the Tribunal has not been established by convention in the General Assembly, which would have then required accession by treaty ratification of each member. Invocation of Article 29 in the resolution establishing the Tribunal gives the game away: The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions. This amounts to an admission that the Tribunal is not an "independent court of law," but a "subsidiary organ" of its political masters.
But while the Tribunal remains fundamentally subordinate to the Security Council, its statute - paradoxically - provides it with primacy over national courts, including the authority to demand the surrender of the accused. Samuel Francis warned that, besides violating principles of national sovereignty, the Hague violated the norms of procedural justice: The whole concept of trying the citizens, soldiers and leaders of one country with judges from other countries for offenses undefined in law and committed against the citizens of yet other countries ought to make a joke out of the whole business, Francis wrote one month before the U.N. Security Council approved the creation of the tribunal.
The procedures under which people are being tried at The Hague are outrageous. When the trial of Dusko Tadic was well under way, four years ago, even The New York Times had to admit that the court still needs to establish exactly what evidence will be admitted and what constitutes and offense. The rules of evidence remain totally unclear to this day.
Equally unacceptable in a normal court of law is the fact that the accused has no right to confront his accuser. That means the accusers may remain anonymous, and, as the American Bar Association has noted in a critique, immune from cross-examination. In short, contrary to any civilized system of justice, the accused is held guilty until proven innocent. This was confirmed by the decision of the majority of the panel to abandon the standards set by the European Court of Human Rights and to deny the defense the right to know the names, or even nicknames, of key witnesses. Sir Ninian Stephen (formerly of the Australian High Court) forcefully dissented from the majority decision, which a prominent British jurist called "a woeful piece of jurisprudence":
It misconstrues the statute, misunderstands precedents, and constantly mis-describes the judicial function in a criminal trial as "balancing" the fundamental rights of defendants against prosecution convenience. The prospect that a defendant may be imprisoned for life on the sole testimony of a witness whose identity he is not allowed to know, it justifies on the grounds that crimes against humanity are "horrific"...
This point is crucial, considering the fact that, so far, the bulk of the tribunal's evidence has been witness testimony. An instructive incident took place in Austria IN 1995-96. There, based on eyewitness testimony from numerous Bosnian Muslims, a Bosnian Serb refugee was arrested and tried in an Austrian court for war crimes; but the witness testimony was so obviously contradictory that the judge stopped the trial twice and gave the prosecution time to drum up more evidence (a ridiculous example of triple jeopardy). However, the contradictions were so apparent, there was laughter in the courtroom, and the judge was finally forced to acquit on the third go-around. But two things were apparent: people are prepared to lie about atrocities to discredit their enemies; and the Austrian judicial system had been anxious to find the Serb guilty. Only the gross errors in testimony saved him. If the witnesses had been a bit more prepared, he would have been found guilty.
In contrast, by all accounts, the Hague tribunal is a well-financed, well-oiled, sophisticated affair. Their witnesses are given red-carpet treatment at the Hague, and a great deal of resources are brought to bear. A lot of time goes into preparing each case. Disregarding rules of evidence and established legal procedure, it investigates, indicts, prosecutes and renders sentence as a single body. It demands that arbitrarily proclaimed war criminals be physically delivered to the Hague. It does not allow defense attorneys to challenge the accusations, by hiding itself behind a lack of mandate for trial-in-absentia. It has turned the NATO troops in the Balkans into its private gendarmerie, empowered to hunt and arrest anyone it regards as a suspect. It is sustaining a worldwide media frenzy through which the accused are pronounced guilty by association and without a trial. It is destroying and making a mockery of the judicial system and secular legal tradition.
ABANDONMENT OF INTERNATIONAL LAW
The Hague story, besides being a travesty of the due process as we know it, amounts to the abandonment of positive international law. The most strident advocates of The Hague tribunal know what they are really after: a permanent court, with a world-wide brief. A dangerous precedent has been created, and we are a step closer to the globalist dream of a permanent International Criminal Tribunal, financed by obligatory taxes levied from member states by the UN. But some of its sponsors here - short-sighted, perhaps - do not envisage "international peace-keepers" patrolling America's racially or ethnically troubled areas; they do not contemplate Somalese or Saudi judges, sitting on such a tribunal, demanding extradition of Americans accused of hate-crimes against The Nation of Islam, or of U.S. magazine editors being put on trial for undermining the multicultural fabric of our planetary community.
There are people in Washington who have a different scenario in mind. They do not seek to de-legitimize war crimes per se, but to enhance their power to decide what IS a war crime on the basis of current political calculations. Applied in recent practice, political discretion over what constitutes a war crime means that when Bosnian Muslims are shelled, driven from their homes or murdered, those powerful Washingtonians are seething with indignation and they duly send The Hague into top gear: indict first, ask questions later. When Serbs are driven from their homes in the Krajina in 1995, or in Sarajevo in the winter of 1996, or from Kosovo to this very day, when they are expelled in their hundreds of thousands, or are discovered with their throats cut, they pretend not to see. Such dual standards are possible because the Administration sees no real danger of the United States having to accept the jurisdiction of an International Criminal Tribunal created by the resolution of the U.N. Security Council, without congressional consent, without presidential signature, with primacy over the Constitution and over American courts. Such indignities - in their view -Ý are reserved for a Serbia, or a Rwanda. But while their intent is not to submit, but to control, the consequences of their actions may prove fatal to this country's sovereignty and to the foundations of its legal and constitutional system.
In the meantime he who pays the piper calls the tune." At its inception the Hague Tribunal received 93.4 percent of its funding from two Islamic countries, Pakistan and Malaysia. Mirabile dictu: both have been given the right to appoint judges to the panel. Both countries have also been among the staunchest supporters of the Muslim side in Bosnia and Kosovo, supplying them with weapons in violation of U.N. resolutions.* The panel also included a Nigerian (where they execute poets for their writings), a Chinese (where nobody has been prosecuted for Tiananmen, let alone the horrors of the Mao era), and an Egyptian Muslim. With guardians like these, the New World justice needs no transgressors.
And many transgressors par excellence are safe from prosecution. The Bosnian Muslim government has stage-managed three well publicized explosions in Sarajevo, in May 1992, February 1994, and August 1995. A total of 121 civilians have been killed as a result. The first incident (the "breadqueue massacre") facilitated the imposition of punitive sanctions against Serbia and Montenegro. The second - the infamous Markale Market Incident - led to the imposition of a heavy weapons exclusion zone around Sarajevo. The third provided the pretext for massive air raids against the Bosnian Serb Republic.
While each of these incidents was blamed on the Serbs, Western intelligence analysts and ballistic experts, IFOR officers on the ground and soldiers on all sides know the truth. So do U.N. investigators, but their findings have been kept secret on American insistence. It would be highly embarrassing to the powers-that-be if they were, since each of those incidents provides ample grounds to take Izetbegovic and his cohorts on the first plane to The Hague. It is also striking that Dr Karadzic and General Mladic have been accused of all manner of nastiness, but the prosecutors at the Hague have shirked from attributing even one of these particular outrages to the Bosnian Serb leadership.
This uncharacteristic timidity notwithstanding, the indictments of the Tribunal are uninhibitedly selective. Two thirds of the accused so far are Serbs indicted for crimes against Albanians, Croats and Muslims. Only a handful of low-ranking Croats and Muslims provide the token quota of those accused of crimes against the Serbs; the Albanians are apparently deemed blameless, ethnic cleansing under NATO notwithstanding. In the meantime, the Serbs have come to constitute the largest refugee population outside sub-Saharan Africa, and there are thousands of well documented cases of atrocities against Serb civilians by Croat and Muslim military and civilian authorities and KLA terrorists. As long ago as April 1993 Simon Wiesenthal was prompted to ask:
How can you judge Serbian leaders without judging their Croatian and sometimes Muslim counterparts also guilty?...the quality of the horror is equal for the three groups... But we are forgetting the fact that the first refugees of the war were in fact Serbs. Nearly 40,000 were forced to leave Croatia when on December 22, 1990, that country decided to proclaim the Serbian people an ethnic minority. It meant that Croatia, before Serbia, gave signs of an exasperated nationalism and of the return of a disturbing past. Serbian Orthodox churches and Jewish synagogues were burned, Jewish cemeteries desecrated.
The Tribunal's bias has been poignantly exposed in the indictment against Milan Martic, leader of the Krajina Serbs, for having ordered the bombing of Zagreb which, regrettably, cost five civilian lives. In their attacks against Western Slavonia in May and the Krajina in August of 1995, Tudjman's troops had ethnically cleansed some 250,000 Serbs and killed several thousand Serb civilians. Even some supporters of the Hague Tribunal, such as the former UN civilian supremo in ex Yugoslavia, Cedric Thornberry, writing in Foreign Affairs, bewailed this selectiveness. Asked to explain the discrepancy between what happened in the Krajina and the indictment against Martic alone, officials of the Prosecutor's Office frankly admitted that the decision was political - which brings us back to the abuse of law, endemic in the Tribunal. Under Article 1 the International Tribunal has the power to "prosecute persons responsible" for the listed atrocities. How does the Prosecutor or anybody else know who is "responsible" for an atrocity, even before the prosecution? A more careful drafting would have used the phrase "prosecute persons alleged to be [or 'believed to be'] responsible." The same problem exists in Article 4.1, which gives the Tribunal power "to prosecute persons committing genocide" as if only those caught in flagrante delicto.
But it could hardly be otherwise, since the model for the Hague Tribunal is not Nuremberg 1946, but Moscow 1938. It is a deeply flawed institution, created for dishonest political ends. It is also an obscene travesty of justice, as understood and practiced in the civilized world. It is consistent with the brave new world in which the U.N. is generating criminal law in chilly disregard of the dictum that people can be obligated to obey only those laws to which they have consented.
The Hague tribunal was conceived in mischief, and remains motivated by political expediency and bias. It embodies the imperial arrogance of powers whose leaders mistake might for right. It would not help to send them copies of Hugo Grotius' 'De jure belli et pacisí of 1625, their choice is irrevocable. They want the model of the legal order under which the laws of war are administered by an "impartial" agent of organized humanity, and reject a model under which the laws of war are administered by each body corporate of the international legal order within its own competence. The Hague sends a clear message - not only to the Serbs - that, in today's world, there can be crime without punishment, and punishment without crime, depending on the arbitrary will of 'the international community.