THE HAGUE 'TRIBUNAL':
BAD JUSTICE, WORSE POLITICS
[* An abbreviated version of this article was published in Chronicles:
A Magazine of American Culture in August 1996.]
Keynote Speech at the S.B.A. Annual Scholarship Ball Union League Club, Chicago; June 7,1996
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 tittle Holland.
The prison is in the North Sea resort of Scheveningen, a wind-swept melange
of belle epoque hotels and 1960s concrete tower blocks. 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.
This article seeks to provide evidence that the Yugoslav war crimes
tribunal is a misnomer: it has proven to be neither a "tribunal"
-- meaning 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. 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 Felix Dzherzhinsky.
The myth of the Bosnian Holocaust
The Hague Tribunal (ICTFY) 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] The obvious question is why only "the
former Yugoslavia," and why only the past five years? A cynic
might say that one possible reason was that the United States did not want
to put its generals on trial for killing Vietnaimese civilians. As Noam
Chomsky put it, "I think, legally speaking, there's a very solid
case for impeaching every American president since the Second World War.
They've aIl been either outright war criminals or involved in serious war
crimes ". [ii]
But 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".[iii] In other words, the enormity of recent crimes
in the Balkans supposedly sets them apart from all other wretched spots
on our planet, and makes them comparable only to the Ultimate Horror of
Auschwitz, Babi Yar and Belsen.
This claim is not supported by evidence. In the five decades since the
Nuremberg and Tokyo trial's there have been well over one hundred million
human fatalities due to war, genocide, democide, politicide, and mass murder.[iv]
Pol Pot's Khmer Rouge killed two million of their compatriots -- one third
of Cambodia's population - in only four years ( 1975-78). This was but
an offshoot of Mao's less known, more grandiose attempt at social engineering
after 1949, which physically destroyed some thirty five million men, women
and children. The Indonesian Army and its affiliates killed half a million
people in 1965-66.
The precise number of victims of India's partition is unknown, but exceeds
one million. This figure was easily exceeded by Pakistan's brief and savage
democide in today's Bangladesh in 1971. Dictatorships in Afghanistan, Angola,
Albania, Romania, Ethiopia, Iraq, North Korea, Uganda... have contributed
their own hecatombs to the total. Even that old darling of western liberals,
Marshal Tito, after being. brought to Belgrade by the Red Army in October
1944 dispatched hundreds of thousands of Yugoslav citizens; the victims
were not only the Vollcsdeutsche of Vojvodina who did not survive deportations
in 1945-47, but any real, potential or imagined enemies of the regime.
Democracies admittedly kill few of their own citizens, but they are
far less restrained in killing foreign civilians in declared or undeclared
Did Harry Truman order the A-bombing of Hiroshima and Nagasaki "in
order to kill, injure, terrorize and demoralize the civilian population"
of Japan? Of course he did, and for the most part, history has treated
him kindly for it. Winston Churchill ordered the firebombing of Dresden
for the same awful reason."
Dresden and Hiroshima have set the scene for indiscriminate bombings
of Vietnamese and Iraqi cities. 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. 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 the Bosnian-Serb Republic in 1995. 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 is: a medium-sized local
conflict. Before any comparisons of "Bosnia" to the Holocaust
are accepted at face value, it is legitimate to ask how many have actually
For President Clinton, addressing the nation on November 27 1995, the
easy answer was 250,000 -- and that in Bosnia alone! For his defence secretary,
William Perry, two sets of figures seem to be equally valid. Testifying
before the Senate Armed Services Committee on June 7,1995, he said that
in 1992 "there were, by our best estimate, about 130, 000 civilian
casualties. [...] In I993, that number was reduced to about 12,
000, and last year, 1994, the estimate was about 2500. " But four
months later, on October 18, he told the House of Representatives International
Relations Committee that "the war in Bosnia has been going on for
more than three-and-a-half years, with more than 200, 000 people killed
There is no empirical basis for any of those figures. Counting bodies
may be poor form ("even one death is one too many"), 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 ".[vi] Kenney is adamant that the number of fatalities
in Bosnia's war is between 25,000 and 60,000 on all sides.
The "Bosnian Holocaust" story was fabricated by the Muslim
side as part of a wide-ranging and effective PR campaign. In December 1992,
the Izetbegovic authorities first claimed that there were 128,444 dead
on the "Bosnian" side (including Croats and "Serbs loyal
to the Bosnian Government"). According to Kenney, this figure was
cooked by adding together the 17,466 confirmed dead until that time, and
the 111,000 that the Muslims had already claimed as missing. He stresses
that, at first, such high numbers were not accepted:
But on June 28, l993 - as near as I can pin it down - the Bosnian
Deputy Minister of Information, Senada Kreso, told journalists that 200,
000 had died. Knowing her from her service as my translator and guide around
Sarajevo, I believe that this was an outburst of naive zeal. Nevertheless,
the major newspapers and wire services quickly began using these numbers,
unsourced and unsupported. [ ... ] An inert press simply never bothered
to learn the origins of the numbers it reported
For the subsequent four years Bosnian-Muslim propagandists have peddled
the story of the "Bosnian holocaust" without being seriously
challenged. 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 (Trnovo, Gorazde,
Bihac). Stories of mass murder and atrocities have not been substantiated
even after sustained and well publicised digs in the area of Srebrenica.
The Red Cross has been able to confirm no more than 20,000 deaths on all
sides. Analysts at the CIA and the State Department's Bureau of Intelligence
and Research put fatalities in the tens, rather than hundreds of thousands
a year ago. This is close to the view of British military intelligence
experts: in early 1995 they estimated fatalities to be 50-60 thousand.
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, the Yugoslav wars of 1991-95 have killed up
to, but not more than, one hundred thousand people.
A dispassionate conclusion is clear: Bosnia was a honor, and Yugoslavia
a tragedy, but there was no "holocaust"! There is little
to support the claim that the war there was "qualitatively" different
from any other dispute between ethnic and religious groups over power and
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
a1l must." Needless to say, any determination of which ones should
be punished - if left to the U.S. 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 ".[vii] The Muslims and Croats could
thus get away with murder, literally and figuratively. The Serbs were to
be pilloried, and the "Tribunal" was needed to give due legitimacy
and pseudo-legality to that decision.
Dubious legal basis
The U.N. Genocide Convention could not, in any case, 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. Boutros-Ghali himself
declared that, "in asking the Secretary- General to consider this
project, the Security Council has given itself an entirely new mandate."[viii]
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
lega1 order? "[viii]
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 authorises 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.
Rubin, too, noticed that there were theoretical problems under Article
29 of the Statute: only "States" are bound to cooperate in arrests
and handings over of the accused. The Bosnian Serbs are not subject to
the "decision" of the Security Council in this regard, since
they are not a recognised state. Thus the Bosnian Serbs can be held bound
to an Article 25 decision of the Security Council only by a logic that
would hold all national liberation movements equally bound or would insert
jus in bellum criteria into the jus in bello against a hundred
and thirty years of experience. Holding the Bosnian Serbs bound by an Article
25 decision of the Security Council also seems to violate fundamental democratic
governmental theory based on the Americans' own notion of "no taxation
without representation." The Bosnian Serbs are not represented in
the United Nations by the authorities of Bosnia-Herzegovina against whom
they are rebelling, or by any other authority that is represented in the
While such theoretical issues remain unresolved, the procedures under
which people are being tried at The Hague have not even been defined. This
blatant violation of due process is important -- not least for the individual
defendants, who may be sentenced under sham proceedings to life in prison.
Incredibly, even after the trial of Dusko Tadic was well under way, "the
court still needs to establish exactly what evidence will be admitted and
what constitutes and offense." The rules of evidence remain totally
unclear at the time of this writing.
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 civilised system
of justice, the accused is held guilty until proven innocent.
This was confirmed by the decision of the majority of the panel trying
Dusko Tadic to abandon the standards set by the European Court of Human
Rights and to deny the defence the right to know the names, or even nicknames,
of key wimesses. 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
misdescribes 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"...[xi]
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. There, based on eyewitness testimony from numerous
Bosnian Muslims, a Bosnian Serb refugee was arrested and tried in an Austrian
court for war crimes.
The witness testimony was so obviously contradictory, however, 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. Two things
are apparent from this episode: people are prepared to lie about atrocities
to discredit their enemies; and the Austrian judicial system had been anxious
to find the Bosnian Serb guilty, and 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 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.
Also, a lot of time goes into preparing each case. It remains to be seen
whether any witnesses will go to trial there with any residual contradictions
remaining. The Hague zealots do not know, or care, that the more "horrific"
the alleged crime, the more due process is necessary.
The Hague story, besides being a travesty of the due process as we know
it, amounts to the abandonment of positive international law and a revision
of the U.N. Charter. A dangerous precedent has been created, and it would
be short-sighted for the American public to overlook it. The most strident
advocated of The Hague tribunal know what they are after: a permanent court,
with a world-wide brief. "This is an idea that's been kicking around
for a long lime, and it's simply a bad idea, " says Edwin Williamson,
a Washington lawyer who served as State Department legal adviser in the
The Hague may yet prove to be a step towards the globalist dream of
such a permanent International Criminal Tribunal. But its sponsors -- short-sightedly,
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 U.S. nationals accused of "hate-crimes" against, say, the
Nation of Islam.
The globalists apparently have a different scenario in mind. They do
not seek to delegitimise war crimes per se, but to enhance their
power to decide what IS a war crime on the basis of current political calculations.
Accordingly, the State Department cited "the risk of politicized complaints"
as one of its concerns about the current draft statute for the permanent
court. Unsurprisingly, it urged that war crime prosecutions be initiated
by the Security Council, where the United States -- of course -- has a
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 or in Sarajevo
in their hundreds of thousands, or are discovered with their throats
cut, they pretend not to see. When Serbs take Srebrenica, it is "genocide."
When Serbs are cleansed from Knin, Drvar, Grahovo or Petrovac, there is
but silence, or an exultant cry that they had it coming to them.
Such dual standards are possible because there is no real danger of
the U.S. having to accept the jurisdiction of an International 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 are reserved for a Serbia, or
a Rwanda. The intent is not to rule but to control; the goal is not a global
superstate but a front for hegemony:
We can be confident that only the borders of middling and small countries
will show a "new legal permeability. " These are the same countries
whose borders were always ' permeable" throughout the age of colonialism
and European colonial imperialism: the countries of the Third World and
Eastern Europe. [... ] As inspiration for a grass-roots movement, human
rights is a vital and precious weapon against the state, the corporation
and other organized power. When it raises armies and jailers, however,
the time has come to start watching the watchers.[xiii]
The kind of populist, universalist rhetoric, used by the American foreign
policy establishment to justify the Hague Tribunal, has been deployed ad
nauseam to misrepresent "Bosnia" in general. Similar rhetoric
may be found in Europe's leftish-leaning press (e.g. The Guardian
and Le Monde) and among a small core of professional "intellectuals"
a la B. Henri-Levy. But among the surviving remnants of the political class
of Paris, London or Rome, Clinton's and Albright's approach is basically
a heresy, a deviation from the European norm, as it has been ever since
a misreading of Montesquiey and the revolutionary ardour of a Tom Paine
started dividing America's culture from its European roots.
Lofty rhetoric apart, U.S. policy in the Balkans has never been about
the Balkans. President Wilson, while advocating the creation of Yugoslavia,
did not know, or care, that the unification of Serbs, Croats and Slovenes
in 1918 was at least half-century overdue: had it happened at the time
of Bismarck's and Mazzini's unification projects, it could have worked.
By the time of Versailles the process of separate cultural development
and creation of separate -- even mutually incompatible -- national identities
among the South Slavs had been completed.
With similar historical inattention, present Western leaders are deliberately
ignoring the traumatic legacy of the massacre which Croat and Bosnian Muslim
Quislings systematically perpetrated against Serbs, Jews and Gypsies in
1941-45. What has happened in Croatia and Bosnia in 1991-1995 cannot be
understood without taking account of the Ustasa "policy of racial
purification that went even beyond Nazi practices" (Encyclopaedia
Britannica). The murder of hundreds of thousands of Serbs during Pavelic's
reign of terror is a contemporary political fact of life par excellence,
just as the Holocaust is for the Jews.
There are no intrinsic reasons for the anti-Serb policy of the
"international community". The Serbs had lived in one state since
1918, when "Yugoslavia" came into being. When the breakaway republics
tried in 1991-92 to force over two million of them to become minorities,
literally overnight, they reacted, and often overreacted. The issue was
not that of aggression versus collective security; instead, the principle
of territorial integrity of the former republics (Croatia, Bosnia) fatally
clashed with the principle of self-determination of the people (the Serbs).
There could have been no objection to the striving of Croats and Bosnian
Muslims to create their own nation-states. But equally there could have
been no justification for forcing over two million Serbs west of the Drina
river to be incorporated into those states.
This begs the fundamental question of the Bosnian war: if the collapse
of Yugoslavia was due to the allegedly insurmountable contradictions between
its ethnic groups, is not Bosnia even less a viable state? Are not
the divergent interests among its ethnic groups even more strongly pronounced?
The Western advocates of a "multiethnic" Bosnia have never satisfactorily
explained the paradox that their pleas are also the arguments for the
reintegration of Yugoslavia, while their objections to such reintegration
are also the arguments against Bosnia's viability.
What, then, is the motive for so many in the Western world to disregard
all such questions -- reasonable in themselves -- and to insist on forcing
the Serbs to submit to the rule of their enemies, or accept mass exodus,
such as the cleansing of the Krajina last August, or Sarajevo today?
The motives of this anti-Serb stance in the power centers of the world
are not rooted in the concern for the Muslims of Bosnia as such,
or indeed any higher moral principle. Western policy in the former Yugoslavia
has no basis in the law of nations, or in the notions of truth or justice.
In Washington in particular, it is the end-result of the interaction of
pressure groups within the American power structure. U.S. foreign policy
in general, and "Bosnian" policy in particular reflects those
groups' concern for their particular interests and global policy objectives.
A Washington insider put it bluntly in the early days of the conflict:
The simple facts are these: we are getting incredible pressure form
the Saudis and others to help the Muslim cause in Bosnia. They remind us
that the Islamic world provides us with al1 the oi1 we want at relatively
low prices, that Islamic states have billions of petrodollars to invest
in 'friendly states" and offer a potential market of over one billion
people for the goods and services of 'friendly countries"; and finally,
that the peace process between Israel and the Islamic world would go better
if Israel's main friend was also a friend to Islamic countries. When you
weigh these facts against what eight million Serbs can do for America's
interests, its clear what direction our policy is going to take.[xiv]
There are two key strategic goals of American foreign policy today.
One is that the U.S. retain its role as the perceived leader of the "international
community". The other is that America remain the foremost economic
power in the world. Thus the war in the Balkans evolved from a Yugoslav
disaster and a European inconvenience into a major test of "U.S. leadership".
This was made possible by a bogus consensus which passed for Europe's Balkan
policy. This consensus, amplified in the media, limited the scope for meaningful
debate. "Europe" was thus unable to resist the new thrust of
Bosnian policy coming from Washington.
While Europe resorted to the lowest common denominator in lieu of coherent
policy, a virulently anti-Serb, agenda-driven form of Realpolitik
dominated America's Bosnian policy. Instead of the neo-Wilsonian "moralist"
approach -- however misguided -- egotistic unilateralism had grown rampant
in Washington. Globalist phraseology should not mislead us. The intent
is no longer to achieve a consensus; it is to force others to acquiesce
to the American position. Just as Germany sought to paint its Maastricht
Diktat on Croatia's recognition in December 1991 as an expression
of the "European consensus", after 1993 Washington's faits
accomplis -- the Hague Tribunal included -- were straight-facedly labeled
by the Administration "the will of the international community."
Just as the European Union has lived with the consequences of its acquiescence
to Herr Genscher's heavy pressure in Maastricht, many reluctant NATO members
have felt the brunt of the new American foreign policy approach. Several
partners within the Alliance were resentful but helpless when the United
States resorted to covert action -- with the support of Turkey and Germany
-- to smuggle arms into Croatia and Bosnia in violation of UN resolutions.
America's role in igniting the war in Bosnia in March 1992, followed by
its refusal to support all pre-1994 attempts to end it through negotiation
(notably the Vance-Owen and Owen-Stoltenberg plans in 1993), and its unilateral
actions to directly aid the Muslim and Croat cause have frustrated the
Europeans, but they were helpless.
The rest is history. Predictably, catching "war criminals"
in Bosnia has now become another American obsession, a media-fed crusade
that may yet make a durable peace impossible. The U.S.-led operation was
initially presented as a limited effort to implement the Dayton peace accord
by creating a "zone of separation" between the factions and enforcing
a cease fire. But a fully fledged political campaign is under way
to turn IFOR into an international gendarmerie, obliged to assist the Hague
Tribunal in apprehending accused war criminals. In the meantime, American
taxpayers are financing massive arms deliveries to the Muslim army through
the Croatian port of Ploce.
At the root of the problem is a deeply flawed model of the new Balkan
order, designed in Washington and Bonn, which seeks to satisfy the aspirations
of virtually all ethnic groups in former Yugoslavia -- except those
"eight million Serbs." This is a disastrous strategy for all
concerned. Even if forced into submission now, the Serb nation shall have
no stake in the ensuing order of things. This will cause imbalance and
strife for years, or decades. It will entangle the West in a ludicrous
Balkan quagmire, and guarantee a new war as soon as Clinton's successors
lose interest in underwriting the ill-gotten gains of America's new Balkan
The little known details of the way the Hague Tribunal operates go beyond
the issues of legality and politics. It would not be an exaggeration to
say that they constitute a moral debacle of the highest order. Here are
some of the facts:
1. In October 1992 the U.N. Security Council passed Resolution 780, establishing a five-member commission of experts to investigate war crimes and other violations of international humanitarian law in the former Yugoslavia. DePaul University law professor Mammoud Cherif Bassiouni was chosen to serve on the Commission and to serve as its "rapporteur", to gather and analyse the evidence of war crimes. Bassiouni subsequently became the chairman of the Commission, and its work provided the initial impetus to the advocates of the Hague Tribunal. The "War Crimes Project" at DePaul was the first data base to the Tribunal's prosecutor.
Professor Bassiouni is a devout Muslim. He has never sought to conceal his core values and prejudices in his books and articles. [xv] Entrusting him with collecting evidence in a conflict between Muslims and non-Muslims was totally inappropriate. It was a gesture of contempt for the Serbs and appeasement of oil-rich friends. As expected, he had consistently refused to accept evidence of Croat and Muslim crimes against the Serbs, while his staff have not hesitated to include third-hand hearsay and anonymous submissions from Muslim and Croat sources.
Bassiouni initiated and legitimized a selective approach to evidence gathering which has become habitual at The Hague, and which prompted David Binder of The New York Times to declare the entire War Crimes Tribunal unfair: I think it is a farce frankly, and it's made more of a farce by their naming political leaders as potential war criminals... If you're going to start listing potential war criminals, you might add Chancellor Kohl and then-Foreign Minister, Hans Dietrrch Genscher, to that list for what they did in pushing the recognition of Slovenia and Croatia, and thereby, spreading and deepening the conflict in the Balkans.
Bassiouni's "Final Report" blamed the Serbs for aggression,
premeditated ethnic cleansing, mass rapes, and all the rest. It was widely
circulated in five languages under the U.N. cover. The outside world perceived
it as an official U.N. document based on `facts'. In fact it was an exercise
in disinformation. Few copies of the 3,000 page Annex were circulated.
This 'primary evidence' -- on which the findings were based -- simply listed
thousands of anti-Serb submissions, without attempting to evaluate their
veracity. Bassiouni's magnum opus would have been laughed out of
any real court, in the U.S. or anywhere else in the Western world -- just
as he himself would have been disqualified from U.S. jury service in any
dispute involving a Muslim and a non-Muslim.
2. "He who pays the piper calls the tune." In its first months the Tribunal received 93.4% 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 ever since 1992, supplying it with weapons in violation of U.N. resolutions. The British journalist Nora Beloff points out that such composition of the Hague Tribunal precludes it from meeting Western standards for an independent judiciary:
It was formed on the model of the Nurenberg Tribunal, with the Serbs cast in advance for the role played at Nurenberg by the Nazis. [ ... ] Boutros Boutros-Ghali, knowing that the Americans were primarily interested in incriminating the Serbs, was careful to exclude countries representing the Orthodox Christian tradition. These might have been sympathetic to the Serbs. Most of the judges came from countries where it is normal to decide the verdict in advance of the trial.
The panel also includes a Nigerian (where they execute poets for their writings), a Chinese (where nobody has been prosecuted for Tienanmen, let alone the horrors of the Mao era), and an Egyptian Muslim. With guardians like these, the New World justice needs no transgressors.
While each of these incidents was blamed on the Serbs, Western intelligence
analysts and ballistic experts know the truth. So do U.N. investigators,
but their findings have been kept secret on American insistence. The facts
of each case have been extensively reported in Europe and Canada (The
Independent, The Toronto Star, The Times) and in some American periodicals
(The Nation, Chronicles). They have not been reported by `mainstream'
U.S. media. 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 to The Hague. It is also striking that Dr. Karadzic and
General Mladic have been accused of all manner of nastiness, but the prosecutors
have shirked from attributing even one of these highly publicized massacres
to the Bosnian Serb leadership.
4. The indictments of the Tribunal are uninhibitedly selective. Seven Serbs stand accused for every Croat or Muslim. It is noteworthy that the tribunal, belatedly, indicted the former Bosnian Croat political second in-command. Is it conceivable that the chain of evidence could rise above the direct command on the scene, and stop precisely at the overall second-in-command? Clearly, the tribunal has made the political point that the Bosnian Croats are `better' than the Bosnian Serbs, whose top leadership has been indicted. In the meantime, the Serbs have become 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. As long ago as April 1993 Simon Wiesenthal was prompted to ask:
The quality of the horror is equal for the three groups... 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.[xvi]
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 cost five lives. In their attacks against Western Slavonia
in May and the Krajina in August 1995, Tudjman's troops had `ethnically
cleansed' some 250,000 Serbs and killed several thousand Serb civilians.
Asked to explain the discrepancy between what happened in the Krajina and
the indictment against Martic alone, Minna Schrag, formerly of the Prosecutor's
O&127;ce, admitted that the decision was political:
We at the ICTY Office of the Prosecutor recognized that the ICTY
could not prosecute every violation of international law that occurred
in the former Yugoslavia. [ ... ] As for why some things are prosecuted
and others are not, that is a question that 1 think arises in every prosecutor's
office. It involves decisions about how to allocate scarce resources,
priorities, purpose. And on a larger scale, why the international community
decided to set up an ad hoc tribunal for the former Yugoslavia, but not
for several other places where there appear to have been serious violations
of international law, is also, I suppose, explained by practical politics
and many other factors. [emphasis added]
Such ambiguities are built into the Hague system. Under Article 1 the
International Tribunal has the power to "prosecute persons responsible"
for the listed atrocities.[xvii] How does the Prosecutor or anybody else
know who is "responsible" for an atrocity, even before
the prosecution? [xviii]
The model for the Hague Tribunal is not Nuremberg 1946, but Moscow 1938.
It is a flawed institution created for dishonest political ends. It is
also a travesty of justice, as understood and practiced in the civilised
world. Ted Galen Carpenter summarized it aptly: The proceedings themselves
are an atrocity. [...] The tribunal, like the Western governments that
pressed for its creation, is blind to the reality that there are Serb victims
in the Yugoslav war. The world does not need another example of moral posturing
and double standards masquerading as a search for justice. It would be
an act of mercy to end this farce as soon as possible.[xix]
The farce of the late BSA General Djukic's arrest by the Muslims in
February 1996, his transfer to The Hague by IFOR, and his indictment by
the Tribunal only after his refusal to testify against Mladic and Karadzic,
is worthy of the judicial proceedings in a banana republic. Such episodes
should not be allowed to continue under the honorable Roman name of a "Tribunal."
They are consistent only with the brave new world in which the U.N. is
generating law in chilly disregard of the dictum that people are obliged
to obey only those laws to which they have consented.
The Hague leaves unresolved the fundamental incompatibility between a model of the legal order under which the laws of war are administered by an "impartial" agent of organized humanity, and a model under which the laws of war are administered by each body corporate of the international legal order within its own competence. Instead of coping with such issues of substance, it accepts the role of a political tool of its political bosses and paymasters. 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'. In a world robbed of God everything is allowed.
i S.C. Res. 827, U.N. SCOR, 3217th mtg., reprinted in. 32 I.L.M.1203 (1993).
ii Noam Chomsky, What uncle Sam really wants, Odonian Press, Berekeley 1995, p. 32
iii M. Albright speaking at the U. S. Holocaust Memorial Museum in Washington on April 12,1994,
iv Cf. Rudolf J. Rummel, Power, Genocide and Mass Murder, Journal of Peace Research Vol. 31-1,1994
v Edward Cody, The Washington Post, April 7,1996
vi George Kenney: All told, how many have died in Bosnia, The New York Times Magazine April 23, 1995
vii Susan Woodward, Balkan Tragedy: Chaos and Dissolution After the Cold War, Washington,1994
viii' Alfred Rubin: An international criminal tribunal for former Yugoslavia, Pace International Law Review. Winter 1994, Volume VI, Number 1
ix Samuel Francis in The Washington Times, January 18,1993, p. A-19
x cf e.g. The New York Times, May 20,1996, p. A-8
xi Geoffrey Robertson, Q.C.: War crimes deserve a fair trial, The Times, June 25, 1996
xii From testimony before Senate Foreign Relations Committee, May 12, 1993
xiii C. Douglas Limmis: Time to Watch The Watchers. The Nation, September 26, 1994
xiv Dr. Ronald Hatchett, Bosnia and the American Foreign Policy Agenda, Russian Academy of
Science, The Lord Byron Foundation Conference on former Yugoslavia, Moscow, January 1996
xv Some of Bassiouni's works include includes the following:
xvi Simon Wiesenthal in interview with Corrierre della Sera. April 1,1993
xvii Statute, art.1, reprinted in 32 I.L.M. at 1192 (1993)
xvii 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.
xix USA Today, February 22, 1995
1996,1997 Srpska Mreza, Last Revised: Apr. 22, 1997