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