War Crime Trials: The Case for and against.

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FOR:
Le Monde diplomatique 

                       -----------------------------------------------------

                       April 2002

                                          MILOSEVIC IN THE DOCK

                                   The case for the war crimes tribunal
                         _______________________________________________________

                        The Hague trial of Milosevic is necessary but reveals the
                       limits of such proceedings, since the court does not operate
                         in isolation from historical events and is not immune to
                                local and world political power struggles.

                                                               by XAVIER BOUGAREL *
                         _______________________________________________________

                         The ongoing trial of the former Yugoslav president,
                         Slobodan Milosevic, has brought two conflicting views of
                         the ICTY into sharp relief. On one side stands Milosevic,
                         who has denounced the tribunal's illegitimacy and bias,
                         joined by his followers and large swaths of Serbian
                         public opinion. According to this camp the ICTY's refusal
                         to consider Nato's war crimes (allegedly committed in
                         spring 1999) is proof that the tribunal's overriding goal
                         is to justify the great powers' intervention in the
                         Balkans and to cover up their responsibility in
                         Yugoslavia's bloody break-up.

                         Media and political leaders in the West - together with
                         those in regions directly affected by Serbian crimes -
                         welcome Milosevic's trial and describe it as a crucial
                         first step towards justice and reconciliation. Some
                         believe that the tribunal may even serve as a test case
                         for establishing historical truth, hence the headline in
                         the French newspaper Lib*©ration on the opening day of the
                         trial: "Milosevic in the light of history" (1).

                         On this point the ICTY's pronouncements have been
                         decidedly equivocal. The tribunal claims that it has no
                         wish to rewrite the history of the Yugoslavian conflicts,
                         thus enabling it to avoid certain awkward questions. But
                         the ICTY is obsessed by the precedents of Nuremberg and
                         Jerusalem (the site of Adolf Eichmann's trial) and by its
                         own sense of historic mission. On 12 February the chief
                         prosecutor, Carla Del Ponte, said in her opening address
                         that "this trial will make history and our work should be
                         seen in that light."

                         But as is often the case, contradictory views appear to
                         be converging on many points. Thus Milosevic's minions
                         denounce the ICTY's provisional nature as well as its
                         dependence on the countries that finance it, taking the
                         tribunal to task for the "double standards" it applies as
                         a consequence. In so doing they find themselves in
                         agreement with the ICTY's most ardent supporters, who
                         would like to see a permanent tribunal with more generous
                         financing and greater freedom to act. Both camps focus on
                         the problems inherent in instituting an international
                         criminal justice system, whose underlying necessity is
                         not at issue. For both camps such a system will provide a
                         unique opportunity to achieve reconciliation and
                         establish historic truths only if it can truly maintain
                         its independence and universality.

                         In the light of the ICTY's activities, instituting an
                         international justice system may well be seen as
                         inherently problematic, particularly as regards its
                         self-appointed tasks of reconciliation and truth-seeking.
                         If the tribunal sees fit to acknowledge the intrinsic
                         limits and paradoxes of international justice while
                         assuming a critical perspective and a circumscribed role,
                         it may well prove decisive in resolving conflicts and
                         tracing collective memory.

                         No one is questioning the need to prosecute the war
                         crimes committed in the former Yugoslavia or the ICTY's
                         authority in this regard. Bringing the major war
                         criminals to book is the least contentious of the ICTY's
                         functions, whether externally assigned or
                         self-designated. Victims are entitled to have their
                         grievances recognised and to seek redress for their
                         suffering, but the restoration of security and trust
                         within the former Yugoslavia will also hinge on isolating
                         war criminals and reaffirming a certain number of
                         principles. The ICTY's unique role in this regard is not
                         compromised by the fact that state-sponsored criminals
                         elsewhere are leading lives of relative tranquillity.

                         Those who have analysed the ICTY's legal procedures have
                         reservations about the tribunal's real impact. Its
                         methods are influenced in part by complex political
                         calculations and gamesmanship, and it is not necessary to
                         see the all-pervasive hand of the CIA at work to conclude
                         that some countries have wielded decisive influence, with
                         the most powerful exerting the greatest pressure. The
                         failure to charge Milosevic and Franco Tudjman (the late
                         Croatian president) in 1995 for crimes committed during
                         the 1992-1995 Bosnian war was a result of their key role
                         in international efforts to mediate the conflict.

                         Even so, the charges brought in November 1995 against
                         three officers involved in the November 1991 siege of
                         Vukovar were undoubtedly meant as a warning to Milosevic,
                         delivered just as the peace negotiations were getting
                         underway in Dayton (Ohio). And if the Bosnian press is to
                         be believed, the relatively light sentence handed down in
                         February 2001 to Dario Kordic, the former Croat leader in
                         central Bosnia, was meant to ease the crisis that was
                         undermining Bosnia's institutions at the time (2) and
                         strengthen the Croatian government, which was reluctant
                         to extradite a number of generals facing charges as a
                         result of their role in August 1995's Operation Oluja or
                         Storm (3).

                         Even though the unpredictable nature of judicial
                         developments may lead some to conclude that the game is
                         rigged, this does not mean that the ICTY takes its orders
                         from the great powers. In fact the powerful nations do
                         not need direct control over the tribunal to change its
                         course of action since they bring their influence to bear
                         whenever their intelligence services hand over (or
                         conceal) documents and whenever their troops set up (or
                         block) the arrest of suspected criminals. In
                         Bosnia-Herzegovina there are signs that the French sector
                         has become a safe haven for certain Serbian war
                         criminals. And in the wake of 11 September it was the
                         US's need to offset the wave of anti-Islamic repression
                         that prompted it to step up the search for Radovan
                         Karadzic, the former Bosnian Serb leader, facing charges
                         of genocide stemming from the massacre in Srebrenica in
                         July 1995.

                         Local figures are also active players in the intricate
                         gamesmanship shaping the ICTY's agenda. The slowdown in
                         the investigations into Croatian and Bosnian war crimes
                         is a product of the Serbian authorities' refusal to
                         recognise the tribunal's legitimacy. The countries of the
                         former Yugoslavia continue to negotiate with the tribunal
                         and to profit financially from their cooperation. And
                         criminal defendants are not above using political
                         arguments to save their own skin: after being indicted by
                         the tribunal, the Croatian general Anto Gotovina went
                         underground last July, warning that if he were arrested
                         he would expose the US secret services' role in Operation
                         Storm. In one strange incident, five Serbs implicated in
                         the Srebrenica massacre and subsequently recruited by the
                         French secret services to fight in Zaire were arrested in
                         Belgrade in November 1999, a none-too-subtle reminder to
                         the French authorities that arresting war criminals was
                         not necessarily in France's best interests.

                         Even if the ICTY's actions do depend on political
                         calculations and gamesmanship, this does not mean that
                         the tribunal is merely a pawn in the service of the great
                         powers. As in almost all legal proceedings the ICTY is an
                         institutional actor caught up in larger power struggles.
                         The tribunal must take this into account if it wishes to
                         maintain and improve its own scope of action. Thus the
                         refusal to consider Nato's alleged war crimes should be
                         seen from this perspective, not from one of passive
                         subordination. But the inevitable - and necessary -
                         intertwining of the legal and the political realms
                         accounts for the ICTY's inherent limits and paradoxes.
                         Witness the tribunal's repeated attempts to assert the
                         primacy of its legal procedures, which have led to
                         certain decisions that actually harmed the causes of
                         reconciliation and remembrance.

                         Let me give two examples. Following the signing of the
                         Dayton peace accord in January 1996, Bosnian police in
                         Sarajevo detained Serbian general Djordje Djukic, who had
                         "wandered" into the Bosnian sector under ambiguous
                         circumstances. Although Djukic's arrest violated the
                         terms of the accords, the ICTY saw it as an excellent
                         opportunity to catch a big fish. They sought to justify
                         the arrest by charging the general after the fact for his
                         alleged role in the Srebrenica massacre and by arranging
                         his transfer to The Hague (4). Even though this may have
                         seemed logical to the prosecutor, the decision was
                         politically clumsy since control over the Serbian-held
                         sections of Sarajevo was in the process of being
                         transferred to the Bosnian authorities.

                         Given that the transfer's primary goal was to maintain
                         the Serbian population within the relevant sectors, the
                         Bosnian authorities were supposed to respect the
                         provisions of the amnesty wrested from them by the
                         international community. But by giving its blessing to an
                         illegal arrest, the ICTY managed to discredit the amnesty
                         initiative, thereby playing into the hands of nationalist
                         Serbs who were organising the mass departure of
                         Sarajevo's Serbs by magnifying the threat of Bosnian
                         reprisals.

                         Second, the decision to charge Milosevic for war crimes
                         committed in Kosovo has had some unfortunate
                         consequences. According to Pierre Hazan, who has
                         published a book on the ICTY (5), the decision to indict
                         the former Yugoslav leader on 27 May 1999 in the final
                         weeks of the bombing campaign against the Yugoslav
                         federation was not motivated by the desire to legitimise
                         Nato's military actions but was aimed at preventing
                         western leaders from making up with Milosevic just as an
                         end to the conflict was in sight, as they had in 1995.
                         Hazan's interpretation is plausible; such decisions may
                         appear well thought-out to The Hague. But observers in
                         Belgrade believed that Milosevic's indictment was
                         designed to justify Nato's ongoing bombing campaign; in
                         fact this view is not quite as paranoid as it might seem.
                         As a result the decision largely discredited the ICTY in
                         the eyes of the Serbs.

                         The ICTY has since learned to take regional timeframes
                         and circumstances into account when bringing charges or
                         putting pressure on local authorities. So it is not
                         surprising that the opening of Milosevic's trial
                         coincided with the first arrests of Albanians accused of
                         war crimes in Kosovo. But this only serves to shift the
                         problem elsewhere: during its first few years, the ICTY's
                         improvised actions sometimes came across as frantic and
                         clumsy. Now it gives the impression of proceeding with
                         greater subtlety, somewhat like the course of Yugoslavian
                         justice under Tito.

                         This is not meant as an across-the-board condemnation of
                         the ICTY's decision-making; but it does underscore the
                         dilemma facing the tribunal. If the ICTY removes itself
                         from the political realm and ignores the broader context
                         in which its actions resonate, it risks being
                         overshadowed by political events and triggering the
                         unfortunate effects previously described. But if the
                         tribunal does take up its political role, it will have to
                         abandon much of its posturing with respect to
                         reconciliation and remembrance. In either case, even
                         though the ICTY faces uncertain prospects, if it wields
                         its power prudently it could still prove to be an
                         effective instrument of justice, reconciliation and
                         truth.
                           ____________________________________________________

                         * Researcher at the CNRS (France's National Centre for
                         Scientific Research) and author of Bosnie, anatomie d'un
                         conflit, La D*©couverte, Paris, 1996

                         (1) 12 February 2002.

                         (2) In early 2001 Bosnia-Herzegovina was shaken by a
                         major political crisis when the HDZ, the primary Croatian
                         party, announced that it would be boycotting the
                         country's jointly run institutions. The HDZ's leadership
                         was protesting changes to the electoral laws announced
                         just prior to the 11 November 2000 elections; it also
                         called for the creation of a third Croat entity in
                         Bosnia-Herzegovina.

                         (3) During Operation Storm Croatian forces pushed back
                         Serbian forces and "liberated" Krajina.

                         (4) Djukic was in charge of logistics for the Serbian
                         army. As such he was suspected of having organised the
                         transportation of men from Srebrenica to sites where they
                         were then executed. In the eyes of the ICTY, Djukic was a
                         "Serbian Eichmann" with all the symbolic weight that that
                         term implies. Suffering from cancer, Djukic was released
                         for health reasons several months after his arrest and
                         died in Belgrade shortly thereafter.

                         (5) Pierre Hazan, La Justice face à la guerre. De
                         Nuremberg à La Haye. Stock, Paris, 2000.

                                                                                  

                                                       Translated by Luke Sandford


                           ____________________________________________________

                           ALL RIGHTS RESERVED © 1997-2002 Le Monde diplomatique

                       
Against:
Le Monde diplomatique 

                       -----------------------------------------------------

                       April 2002

                                          MILOSEVIC IN THE DOCK

                                     The case against the Hague court

                                           by CATHERINE SAMARY

                         "We knew the Milosevic trial was going to be difficult
                         but who could have imagined that, from the very
                         beginning, it would be such a disaster for the
                         International Criminal Tribunal?" This comment from
                         Stojan Cerovic, a reporter on the weekly news magazine
                         Vreme (1), well known in Belgrade for hostility to
                         Slobodan Milosevic, confirmed what people were saying,
                         not without pride, on the streets of the Serbian capital
                         after the first few days of what was to be a "historic
                         trial".

                         Until the trial opened on 12 February, it had looked as
                         though Milosevic and his defenders were going to
                         challenge the legal standing of the tribunal and boycott
                         the trial (2). Milosevic had been held in Belgrade at the
                         time and his supporters claim that his forcible removal
                         to The Hague was unlawful. Indeed, the Yugoslav
                         constitutional court had just refused to grant
                         extradition on the ground that there was - and still is -
                         no legal basis for cooperation with the ICTY.

                         In the event, Milosevic opted to use this public arena to
                         present his own defence, declaring that "the people and
                         public opinion should be his judges." In Belgrade, there
                         was intense interest in the opening of the trial. The
                         proceedings were broadcast live on three channels,
                         viewers kept a daily tally of the points scored by the
                         defendant and his popularity began to recover. But it was
                         not to last.

                         CNN stopped broadcasting when he produced pictures of the
                         collateral damage caused by the Nato bombing. Since 19
                         February, when he undermined the principal witness for
                         the prosecution, Mahmut Bakalli, in cross-examination,
                         even the ICTY website no longer publishes transcripts of
                         the proceedings. The Serbian radio and television service
                         Radiotelevizija Srbije (RTS) stopped broadcasting the
                         trial on 8 March, on the ground that it was too costly,
                         and the federal TV channel YuInfo followed suit on 13
                         March. The independent radio station B92, which has good
                         technical links with the ICTY, still covers the trial,
                         but subscribers may decide to call a halt at any time.

                         President Vojislav Kostunica's view is that "much of the
                         evidence is true but much is also superficial, truncated
                         and manipulated. It is being politicised and there is an
                         element of hypocrisy" (3). In fact, despite the
                         tribunal's attempts to appear impartial, the prosecutor,
                         Carla del Ponte, has largely helped to bring the ICTY
                         into disrepute by refusing to investigate the claim that
                         Nato was guilty of war crimes against civilians. And the
                         defendant, Milosevic, whatever one may think of his
                         policies and his one-sided interpretation of events, has
                         been helped by the paranoid theory - rightly condemned by
                         Stojan Cerovic - that "the whole disaster in former
                         Yugoslavia was the result of a criminal conspiracy among
                         members of his entourage" (4).

                         Sociologist Srdjan Bogosavljevic, interviewed in Belgrade
                         during the first week of the trial, explained the general
                         unwillingness to admit that crimes had been committed in
                         the name of Serbia: "Most people say they could not bring
                         themselves to commit a crime and they believe the same is
                         true of Serbs in general. But the main reason for this
                         collective blind spot is that there are about 600,000
                         Serbian refugees from Croatia and Bosnia in the country,
                         so people are more aware of the crimes of others."

                         The jokes circulating in Belgrade about the Kosovar
                         Albanian witnesses are sometimes thought to be a bit
                         racist. In fact, Mahmut Bakalli, a former apparatchik of
                         the League of Communists, was president of Kosovo in 1981
                         and in that sense he is emblematic of the prosecution's
                         weaknesses. He made a very poor showing as a witness for
                         the prosecution because he was desperately anxious to
                         attribute the start of the crisis in Kosovo to a speech
                         Milosevic made in 1989. He was equally poor as a
                         spokesman for the Albanian cause because, as the
                         defendant did not fail to point out, this was the man who
                         had ordered the tanks out in 1981 to crush demonstrations
                         by young Kosovars seeking republican status for the
                         province. Milosevic quoted an interview with Bakalli at
                         the time, in which he had rejected their claim.

                         The responsibility for evidence of this type lies with
                         the tribunal machinery, which has tried to justify
                         bringing a case against Milosevic for the events in
                         Kosovo during the Nato bombing, while glossing over the
                         nature of the real conflicts that were tearing the
                         province apart and overlooking the civil war underlying
                         the expulsions, which was made worse by the bombing. Will
                         the ICTY be accused of "revisionism" because it withdrew
                         the charge relating to the notorious Operation Horseshoe
                         (5), which turned out to be a fabrication? The constant
                         bombardment, actual and verbal, ("Auschwitz", "genocide",
                         "deportation") has caused intoxication; a cool look at
                         the evidence is needed. The misguided press campaign
                         sought to justify the war waged by Nato and still
                         prevents any genuine reappraisal of a territorial
                         conflict in which both sides, Serbian and Albanian, were
                         in the right.

                         There is no denying certain facts. Many Kosovars were the
                         victims of real crimes perpetrated by the Serbs; but the
                         prosecutor has not been able to charge Milosevic with
                         genocide in Kosovo. Hence the extension of the trial to
                         include events in Croatia and Bosnia. Yet everyone knows
                         that the Dayton accords sanctioned the ethnic cleansing
                         at the time and that those responsible for it were
                         present at the negotiating table. If Milosevic is guilty
                         of crimes against humanity, then others are too. Not to
                         mention their willing accomplices: the governments of the
                         West.
                           ____________________________________________________

                         (1) See Courrier International no 592, 7 March 2002.

                         (2) See interview with Jacques Vergés (8 January 2001).
                         The ICTY budget has increased from $276,000 in 1994 to
                         $96m. in 2001, 14% being privately funded and the
                         remainder being provided by the UN. Washington would like
                         to cut this "excessive" expenditure.

                         (3) Le Monde, 21 March 2002.

                         (4) Courrier International, op cit.

                         (5) See Serge Halimi and Dominique Vidal, L'opinion, *ßa
                         se travaille. Les medias, l'OTAN et la guerre du Kosovo,
                         Editions Agone, Marseille, 2000.

                                                                                  

                                                      Translated by Barbara Wilson


                           ____________________________________________________

                           ALL RIGHTS RESERVED © 1997-2002 Le Monde diplomatique