Alexander Mezyaev: The ICTY case against Slobodan Milosevic: Some Questions of International Law

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The Hague Proceedings against Slobodan Milosevic: Emerging Issues in International Law
 The Hague, Saturday, 26 February 2005

The ICTY case against Slobodan Milosevic:

Some Questions of International Law

by Alexander Mezyaev

 

            The proceedings against Slobodan Milosevic at the International Criminal Tribunal for the former Yugoslavia [ICTY] has been under way for three years now (it began on 12 February 2002). In that time, the Tribunal has made a series of decisions that raise serious questions of both ethical and legal nature, especially in the realm of international law.

            However, this process should be seen in the broader context of ICTY’s operations; in its 12 years of existence, the Tribunal has made many rulings not only at odds with international law, but also often in direct contradiction. These rulings go beyond the boundaries of criminal and political issues the Tribunal is dealing with. Due to the special relationship of Western states with the Tribunal, its activities and “innovations” have come to be seen as “progressive development of international law,” and its controversial rulings as the source of contemporary international law.

This article attempts address and analyze the essential problems with international law that the Tribunal has in general, and its conduct in the Slobodan Milosevic case in particular.

 

1. General problems with international law in the activities of the ICTY

 

This issue merits a monograph of its own; this article will limit itself to noting general problems, with the purpose of defining the context for analyzing the process against S. Milosevic.         Chronologically, the first legal problem of the Tribunal was its illegitimacy. Much has been said and written about this, so we will only note that the creation of the ICTY by the UN Security Council went beyond the UNSC’s authority. Practically, the UNSC blatantly violated the UN Charter, usurping judicial authority. Furthermore, this decision violated a basic and general principle recognized in all legal systems: “One may not delegate the authority he does not possess.”

The illegitimacy of the Tribunal has been noted by many jurists, including those that actively support the ICTY. Several authors who noted the illegitimacy of ICTY’s creation have argued nonetheless that this action was justified, as the ICTY would eventually “serve the good cause.” However, these hopes were not destined to be. The Tribunal’s activity has shown itself to be ridden with the most outrageous violations of international law, and even its own Statute. We shall note the basic few.

Since the beginning of its work, the Tribunal began inventing its own rules and amending them at need. It violates the basic precepts of law that a court can decide on its own process rules. Under the guise of regulating “technical” matters, the court has actually changed the essence of the proceedings. Thus it introduced the institution of plea-bargaining, which in practice translates into the prosecutors dropping most charges and promising more lenient penalties  in exchange for a guilty plea on one charge. In these cases, there is no debate in the courtroom at all. Plea-bargaining is outside the scope of international law, which should be the basis of the Tribunal’s work, and it is not sanctioned even by the Tribunal’s own Statute. Neither the ICTY nor the jurist community have been able to present convincing explanations and legal justifications for such a change to the Statute. During a video interview I had with deputy prosecutor Graham Blewitt, he answered my question about the legal concerns about plea-bargains by saying there was “nothing terrible” in that “novelty,” and that it was a common practice in his homeland of Australia. Indeed, this is a common practice in Australia; however, Australia is not the issue here, but the ICTY, and the deputy prosecutor knew that well. His answer, therefore, obviously demonstrates that even after all this time, the Tribunal has not yet come up a convincing explanation for its actions. As to how this arrangement has worked out in practice, we could point out the example of Drazen Erdemovic. A soldier of the Bosnian Serb army, Erdemovic confessed to taking part in the murder of 1200 people, of which he personally shot 120. In exchange, the prosecutors dropped the charge of murder (!!!) and left the charge of violating the laws and customs of war. Erdemovic was sentenced to five years’ imprisonment, but did not have to serve the full sentence; the president of the Tribunal granted him an early release. It all becomes clearer if one notes that Erdemovic testified that the orders to kill were given by the Bosnian Serb Republic leadership, and agreed to testify against S. Milosevic.[1]

Other “amendments” to the procedural rules have been introduced as well, changing what the UN Security Council originally established beyond recognition. What happened in fact was the creation of two tribunals: the one envisioned in the Statute, and the one conjured by the Rules of Procedure and practice. The difference between them is too great not to be a source of most serious concern. The Russian Federation has lodged its disagreement with the Tribunal leadership’s policies on several occasions, including to the UN Security Council itself.[2] However, the Tribunal has paid these objections no heed, and for reasons abundantly clear: Russia has no leverage with the Tribunal, while others do. Which leads to the next issue concerning the Tribunal, no less important: its funding. The Tribunal, supposed to be funded by the UN, but receives significant amounts of money from particular states, such as the U.S. and  other NATO member states. It is not a coincidence that the ICTY refused even to investigate the crimes committed by NATO during the aggression against Yugoslavia, using frivolous excuses that have no basis in law. In that regard, it is interesting to note the “slip” by one of the prosecution’s witnesses, former NATO commander General Rupert Smith. During his testimony in the Milosevic trial, Smith said (truth be told, in a different context) that “as a general rule, those who pay the bills get to issue orders.”

There is no basis, whether in the ICTY Statute or in international law, for secret indictments, abductions of suspects and indictees, using testimonies that were obtained illegally, secret witnesses, etc. yet the Hague Tribunal practices all of the above. Since the very first case (that of Slavko Dokmanovic), the Tribunal has practice the principle, “Arrest first, gather evidence later.”

Only the blind, or those deliberately not seeing it, could remain oblivious to the partiality of the ICTY. Even though Serbia was the only state in the former Yugoslavia that did not go through a civil war, and which preserved its ethnic structure almost completely (if one does not count the hundreds of thousands of refugees from other Yugoslav republics), the Serbian leadership has been most targeted by the Tribunal. Meanwhile, none of the officials of the governments in Croatia, Slovenia, Bosnia and Herzegovina – the main initiators of the Yugoslav civil wars – have faced criminal prosecution. Confirming that this is a result of deliberate policy is the abject refusal of the Tribunal to even investigate, let alone punish, the war crimes of NATO during its aggression against Yugoslavia in 1999.

From the standpoint of this article, particularly important are the decisions of the Hague Tribunal that cause serious doubts and directly contradict international law and practice. Among them we should note the “revisiting” of the ruling by the International Court of Justice in Nicaragua v. The United States; introducing new theories of criminal law (first and foremost the theory of “joint criminal enterprise,” or JCE); abolishing the burden of proof for special intent in committing the crime of genocide, and abolishing the difference between deportation and forcible transfer.

Each and every one of these merits separate and detailed research. They are highlighted here as general problems, so as to illustrate more clearly the context in which we need to observe the focal case of the Tribunal, the “trial” of Slobodan Milosevic.

 

2. Legal problems in ICTY’s conduct in the case against Slobodan Milosevic

 

The trial of S. Milosevic at the ICTY is without a doubt a world champion in the sheer number of violations – of international law, rules and statues of the Tribunal itself, Yugoslav law, and last but not least, elementary ethics.

Listing the violations could begin with an act against the Yugoslav constitution that was the abduction of S. Milosevic from Belgrade in 2001; violating the immunity of a former head of state; refusal to secure and protect his rights in accordance with the International Covenant on civil and political rights and the European Convention on Human Rights;  use of secret witnesses and secret sessions; acceptance of dubious testimony and even perjury.[3]  Since all these issues are beyond the scope of this article I will focus on the three most significant international law issues of the case, specifically set by the decisions of the Trial Chamber in June 2004.

 

***************

 

It is of special importance for the purpose of this article to examine the ruling of the ICTY on the motion for acquittal of 16 June 2004.[4]

The grounds for filing the motion was Article 98-bis of the Rules of Procedure and Evidence, which stipulates the right of the accused, after the Prosecution finishes presenting its case, to demand acquittal on those counts of the indictment that had not been proven sufficiently or, or had not been proven at all.

Since S. Milosevic does not recognize the legitimacy of the ICTY and refuses to have any legal communication with it, the motion was filed by theamici curiae.

There were more than enough grounds for acquittal. In effect, the prosecution has suffered a fiasco, unable to conduct the proceedings either on the legal or on the ethical level. Use of lies had become the norm. Milosevic had refuted the testimonies of practically every witness for the prosecution[5], while many witnesses were caught in perjury.[6] One of the witnesses admitted he was offered acquittal in a criminal proceeding in exchange for testifying against Milosevic[7]  Even the former Serbian Premier Minister Zoran Djindjic, who extradited S. Milosevic to The Hague in violation of his country’s Constitution, called the proceedings a “circus”! However, the Tribunal simply pretended none of this happened. Its ruling of 16 June 2004 clearly indicated that Milosevic has already been found guilty.

In effect, the ruling consists of two parts:

–         An analysis of international and criminal law issues, and

–         Factual material presented to the court as evidence, which not only wasn’t addressed by the analysis, but even was not evaluated at all.

To focus on the issues of international law, we need to briefly address the issues with the factual material.

In their motion, the amici curiae pointed out a series of factual assumptions stated in the   indictment that were not sufficiently  proven up by the evidence, and some of them were not proven at all. This would support the analysis that the prosecution acted along the line of “arrest first, evidence afterwards.” It is absolutely unacceptable that “facts” such as “murder of 27 people” or “execution of 58 men, women and children” and other of such kind, were never factually proven. Even the prosecutors themselves admitted they could not offer any factual evidence to this. The judges were therefore forced to strike these assertions from the Indictment. However, something strange happened to the significant number of facts dealing with the “sufficiency” of evidence. The judges rejected most of the amici’s motions to dismiss, claiming the evidence were “sufficient”.

Without a doubt, the “sufficiency” of an evidence is a vague concept. However, one should keep in mind that “sufficiency” is defined here in relation to the ability of the judges to accept the charges as proven “beyond reasonable doubt”. Interestingly, the judges qualified as “sufficient” even some of the evidence the prosecutors did not regard as such! Also important is that a vast amount of claims were asserted as facts by the judges, not on the basis of testimonies in the Milosevic trial, but testimonies in other cases![8]  To put it mildly, this is dubious  evidence. Yet it is a common practice at the Hague Tribunal.

Especially objectionable is the fact that while asserting the “sufficiency” of evidence submitted, the judges did not evaluate it at all, and also refused to discuss the credibility of witnesses that presented it. Only one explanation is possible here: the judges approached the evidence presented as prima facie – but that is absolutely not what they had to do. Any prima facie considerations should have been made by the reviewing  judge during the confirmation of the indictment, before issuing the arrest warrant. On the other hand, the whole purpose of the motion to acquit was to evaluate and analyze the evidence submitted.

Let’s look at a specific example. An expert witness cites in his expert testimony that the Serbian interior ministry (MUP) had 150,000 employees. Milosevic cites a different number, 30,000. Asked where he got the number of 150,000, the witness cannot quote a source. First he cites the wrong source, then insists, then concedes it was impossible. The witness has no other explanation. That’s a textbook case of a discredited expert witness. There were many cases of witnesses not recognizing their statements, and giving contradictory statements. One witness gave three completely different versions of the same event within one minute. The list goes on.

In situations like these, it is up to the judges to decide whether the evidence given were sufficient to support the allegations of the indictment. That is impossible without analyzing the testimonies and assessing witness credibility. However, the judges refused to do so, and basically confirmed the indictmentprima facie second time. Naturally, the motives of such a sleight of hand are clear, but they do not justify the judges in the least. If the judges refuse to assess the credibility of such witnesses, what other conclusion can we draw than that the verdict has been reached beforehand? This is the basic conclusion we made on the matter of the factual considerations.

Let us examine in more detail the most important international law issues deriving from the motion for acquittal.

 

I.                    The Kosovo indictment

 

1. One of the most important questions the ICTY has to resolve before addressing any particular case is the establishment of the fact that the situation of the “armed conflict” existed.

The amici curiae claimed that part of the Kosovo indictment could not be considered by the ICTY, since until 24 March 1999[9] there was no “armed conflict” in the territory of Kosovo.

If the court had agreed, only a few – but fundamentally important– events would have been stricken from the Indictment. First and foremost, this refers to the incident at Racak, which served as the pretext for aggression.

In defining armed conflict, the judges used the following way:

–         They used definitions from the Tribunal’s ruling in the Tadic case;

–         They listed the necessary criteria for armed conflict;

–         They analysed the existing evidence supporting all of the above criteria;

–         And they analysed the criteria pointed out by the amici curiae – which, however the Trial Chamber did not consider necessary to qualify armed conflict.

The Trial Chamber invoked the definition of armed conflict given in the verdict of the Appeals Chamber in the Tadic case, which says: “An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.

Therefore, the ICTY argued that the following qualifies an armed conflict:

–         Organization of conflicting parties; and

–         Intensity of the conflict

For understandable reasons, the trial chamber did not address the organizational level of government forces during the Kosovo conflict, but it did address the organization of the so-called Kosovo Liberation Army (KLA).

The judges reached the conclusion that there is a preponderance of evidence that the KLA was an armed group with unified command, headquarters, areas of operation and the ability to organize security, transportation and supply. It is interesting, however, what testimonies the trial chamber used to support such a thesis. One of them was Lord Ashdown (now the High Representative of the international community in Bosnia and Herzegovina), who monitored the transport of weapons from Albania to Kosovo. Ibrahim Rugova (the so-called “president” of Kosovo) claimed that the KLA had a unified command structure. Leaders of the KLA’s terrorists (who testified as honored guests of the ICTY!) claimed they had their own areas of operation. Thus the judges concluded that the first characteristic for armed conflict was present.

To prove the second characteristic – intensity of conflict – they considered separately:

–         Length or protracted nature of the conflict and seriousness and increase in armed clashes;

–         Spread of clashes over the territory;

–         Increase in number of governmental forces sent to Kosovo;

–         Weapons used by both parties.

To evaluate the validity of these elements the judges mostly relied on a series of testimonies by secret witnesses, KLA leaders, and former OSCE observers, concluding that the presented evidence was sufficient. Therefore, the judges decided there was a sufficient evidence that the armed conflict existed in Kosovo prior to 24 March 1999.

However, it is striking that the judges refused to treat as necessary the criteria for armed conflict presented by the amici curiae, specifically the subordination to civilian authority and control of territory. Still, the judges ruled that there was enough evidence of their existence as well.

They found support for it in the testimony of Lord Ashdown. We need to note the “fact” that convinced the judges: in his testimony, Lord Ashdown said that Rugova had told him at a meeting that he was in control of the KLA. Ashdown himself said he had not believed Rugova entirely. Later, village elders told Ashdown they recognized Rugova as their leader. However, the judges did not ask Rugova about any of this, even though he was a witness himself and could confirm or deny these speculations.

Without discussing the credibility of testimonies, we can say that it was obvious not an accident that the judges refused to analyze the statements, as shown above. That methodology (eschewing analysis in favor of prima facie considerations) was necessary for achieving very important legal objectives in this phase.

Assessing the methodology and conclusions of the Trial Chamber in the establishment of the situation as an “armed conflict”, we must conclude that the judges consciously “directed” themselves onto a false path from the start. First of all, armed conflict should not have been defined using an abstract characterization stemming from the Tadic verdict, but should have relied on the norms of contemporary  international law. One of them is Article 1 of the II Additional Protocol of the 1949 Geneva Convention, which defines non-international armed conflict: “This Protocol… shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.

Had the judges not resorted to sleigh of hand, but rather considered the qualifications as given in international law – as opposed to the internal “law” of the Tribunal – they would have had to reach a different conclusion. Their motivation is clear: the judges realized it would be very difficult to prove the criterion of “applying the norms of this Protocol” by the KLA.

A series of details indicates the judges were well aware that their actions contradicted international law. First, the II Additional Protocol is actually mentioned, but only in passing (“The Tadic decision is in accordance with Protocol II”) and second, the judges pretended not to understand the motives of the amici and ruled the “application of the Protocol” referred not to armed groups, but to civilian authorities controlling them.[10]  The judges avoided elaborating on the issue by declaring the criterion of civilian control as irrelevant. Protocol II, however, clearly indicates the necessity of ensuring the application of international humanitarian law by armed groups, not civilian authorities controlling them. Article 1 of the Protocol could also be interpreted as meaning that what was necessary was not the readiness to apply the Protocol itself, but rather the control of territory and population that would give armed groups the ability to apply the Protocol. Even so, the judges would have to demonstrate the existence of such control. The very fact they refused to qualify the situation in accordance with international law is ipso facto its violation.

Refusal of the ICTY judges to apply the norms of international law may appear unexpected, but it is hardly new for the ICTY. This is not the first instance of such behavior.

 

2.                  The second crucial issue the judges had to resolve was the distinction between “deportation” and “forcible transfer.”

In general, the judges’ decision was correct: they ruled that both deportation and forcible relocation were indeed war crimes. However, it is disturbing that this took so much effort.

The Trial Chamber stated that the ICTY Statute defines deportation and forcible transfer as the same crime.[11] The Trial Chamber said that if this conclusion were correct, it would contradict international law. However, this was greeted with alarm both by the prosecutors (who maintained that deportation and forcible transfer were one and the same), and the judges. In its ruling in the Stakic case, the Trial Chamber officially conflated deportation and forcible transfer.[12]  This is one more confirmation that the ICTY is rewriting international law as it sees fit.

 

II. The Croatia Indictment

 

No less interesting are the questions of international law posed by the amici curiae in the Croatian phase of the trial, or the responses of the Trial Chamber.

Given that the prosecution charged S. Milosevic for serious violations of the 1949 Geneva Conventions, it had to be proven that in the entire time period there was an armed conflict of the international character. The existence of an “international armed conflict” presupposed the existence of a state, in this case Croatia. The exact moment in which Croatia became a state, however, represents a complex problem.

The prosecutors insisted that Croatia became a state from the moment of its declaration of independence (8 October 1991). The amici curiaeadvanced an obviously weak argument that Croatia actually achieved statehood “in the period between 15 January 22 May 1992” – in other words, in the period between Croatia’s recognition by the European Community (EC) and its admission to the UN.

The weakness of this argument is not so much that the amici offered the notion of recognition by the EC as a qualification of statehood, but that their argument was vague and therefore ineffective.

The Trial Chamber correctly defined that the existence of an international armed conflict requires the existence of a conflict between two or more states, so the timing of Croatia’s statehood is of critical importance. We must note here that the judges again used the same sleight of hand, changing the points of departure for their analysis. Instead of referring to a definition of an international armed conflict from international conventions, they again referred to their “own law” – the Appeals Chamber’s ruling in the Tadic case.

No doubt, the question was crucial. If the Trial Chamber accepted that Croatia became a state on, for example, 22 May 1992, then all the counts of the indictment referring to earlier events would be subject to exclusion. Obviously, the trial chamber could not handle such a “sacrifice,” and had to approach the definition of statehood very carefully.

As the basic definition of statehood, the Trial Chamber selected the 1933 Montevideo Convention on rights and obligations of states. Relying on this definition, the court put forth the following criteria of statehood:

1.      population;

2.      defined territory;

3.      government; and the

4.      capacity to enter into international relations.

The court’s arguments and conclusions regarding the first criterion – population – are very interesting. The court accepted the prosecution’s argument that the Croatian Constitution defined the Republic of Croatia as a united, indivisible democratic and social state, deriving its power from the people and of the people. No less interesting is that the court considered sufficient evidence for this the testimony of former prime minister Hrvoje Sarinic, who quoted the Constitution from memory. This “fact” allowed the court to argue that on 8 October 1991, Croatia had a permanent population.

As for the matter of the defined territory the court also accepted the prosecution’s arguments inter alia that:

–         state practice shows that the existence of fully defined frontiers is not required and that what matters is the effective establishment of the settled community;

–         during examination-in-chief and cross-examination, the fact that there was a defined Croatian territory was not in dispute;

–         the accused (i.e. S. Milosevic) did not challenge the existence of Croatian territory; and

–         that in October 1991, official SFRY documents recognized the “territory of the Republic of Croatia”.

These arguments are at the very least odd. First of all, state practice is very contradictory and often does not correspond to international law. Furthermore, it is not the source of international law. As for the “territory of the Republic of Croatia,” Milosevic not “challenging” it, and its mention in SFRY documents, this is more speculation than a legal argument. It is nonsense to claim that Yugoslavia recognized the territory of Croatia in October 1991, because the same can be said of September, May or August 1991, or 1981, or 1971.

Still, the court decided the prosecution’s arguments were sufficient evidence Croatia had a specific territory.

The judges pretended that the existence of Serbian Krajina, Western Slavonia, Eastern Slavonia, Baranja and Western Srem – which at different times were in effect separate states in the “defined” Croatia territory – had no legal importance. The irony is that the very essence of this part of the case against Milosevic deals with issues stemming from the separation of Serb regions! In that context, the wholesale acceptance of prosecution’s arguments and disregard of legal ramifications of the existence of Serb regions in Croatia’s territory looks like overt prejudice.

As their final argument the judges quoted opinion #11 of the Badinter Arbitration Commission, which stated that Croatia had become a state on 8 October 1991.[13]   However, the Badinter Commission’s opinion has no legal force. Moreover, no serious international law argument was presented; the court simply accepted the Commission’s opinion because it was convenient.

On the issue of government, the court indicated that the Croatian government controlled 70-75% of the country’s territory, that it employed administrative personnel, and enacted laws. This justified the conclusion that Croatia had an “effective government.”

The last criterion for statehood the court considered was the issue of independence. The court stated that the best demonstration of independence was the ability to enter international relations.

It is known that Croatia declared its independence on 25 June 1991, but delayed the implementation of the declaration for three months at the request of the EC.

Prosecution’s arguments that presidents of Serbia and Croatia engaged in bilateral talks; that representatives of Croatia engaged in negotiations with international observers and signed treaties; and that the Croatian government was received by commissions of the EC and the UN, were accepted by the court as proof that Croatia satisfied that criterion for statehood.

The court again referred to the Badinter Arbitration Commission opinion #11, asserting that from the standpoint of international law, Croatia became a state on 8 October 1991, and concluded that there is a sufficient evidence that Croatia’s statehood starting with that date. Therefore, the judges rejected the motion to acquit S. Milosevic on all counts of crimes committed in Croatia prior to 22 May 1992.

            When evaluating the arguments used by the judges to establish the fact of the  Croatia’s statehood, one should note that the Trial Chamber unfoundedly resorted to definitions from the 1933 Montevideo Convention. To be precise, they offered an explanation – but it was entirely unsatisfactory. The court emphasized that “it has become common practice to regard this provision of the Montevideo Convention, a regional treaty, as a crystallization of the state of customary international law…”. Even if this were true, the court must not simply quote “one commentator”, but prove his assertion. This is a crucial matter, and must be backed up by evidence.

In addition to the author quoted by the judges (C. Wabrick), who wrote the chapter on statehood and recognition in the book “International Law,” edited by M. Evans, there is a great amount of literature addressing this question. One must wonder why the court did not refer to the far more fundamental work of Professor I. Brownlie, member of the UN International Law Commission, who directly argued that the criteria listed in the Montevideo Convention were by definition basic, and were nothing more than “basis for further investigation.”[14]  Or they could have quoted Professor M. Shaw, who calls the Montevideo Convention criteria “neither exhaustive nor immutable.”[15]  Both of these works have been de facto textbooks of international law for decades, true classics in the field. That the court ignored them and quoted a virtually unknown work instead proves that the judges deliberately sought support for a different position than one commonly accepted in the contemporary theory of international law. This could not have been an accident, because there is another fundamental criterion of statehood in addition to the four listed in the Montevideo Convention: the issue of the state’s legality and legitimacy.

It should be noted that the Trial Chamber’s decision pointed out correctly that the creation of a state is an issue regulated by law and that the criteria for statehood are also regulated by law. However, this factual truth was then ignored by the judges themselves. ICTY is obliged to use an international law, so the definition of state should be based not on just an abstract “law” definition, but on the definition in international law. Qualifying Croatia as a state was not of political, geographical or social importance to the case, but of importance in the context of international law. In other words, the court had to define the moment Croatia became a state in the sense of international law! Contemporary international law unanimously accepts as a state only an entity (with territory, population, government and ability to enter international relations) created legally. Illegal entities can be considered states politically, but they arenot states from the standpoint of international law.

It is perfectly obvious that Croatia violated the basic principle of international law – that of territorial integrity of the state, which also has the character of jus cogens. It violated the SFRY Constitution in the most violent manner imaginable. The Croatian state was created through violence, which caused civil war within Croatia and provoked civil war in one other republic. In the international legal literature, it is clearly defined that international law does not recognize the creation of states that violates the fundamentals of international law, and especially the principles characterized as jus cogens. American professor L. Henkin, member of the UN Human Rights Committee, writes that even if an entity satisfies the criteria of statehood based on the Montevideo convention, international law demands other states do not recognize that entity as a state if it had been created by violating the basic principles of the UN Charter.[16]  It is well known that Article 2 of the UN Charter establishes the principle of non-violence and the principle of territorial integrity (inviolability) of states. Professor J. Duursma also emphasizes that the illegality and illegitimacy of any entity’s creation cannot give it a right to call itself a state.[17]

It is precisely the criteria of legality and legitimacy that the ICTY not only didn’t consider, but avoided mentioning entirely. Most likely, the court ignored the characteristics of statehood from the standpoint of international law precisely because it was obviously impossible to prove that the creation of the Croatian state was legal.

We may ask, then, why Croatia was admitted to the UN, since only states could join the organization. Though the question is appropriate, it does not refute the thesis that the Croatian state was created illegally. By accepting Croatia into the UN, the international community merely committed collective recognition of an illegally created state. Without entering the moral and technical aspects of that decision, we must conclude that Croatia became a state from the standpoint of international law only when it was legitimized by UN recognition. Recognition of Croatia by individual EC countries, the EC itself, or the United States, lacks the authority to legalize the illegal creation of an entity. Therefore, the only proper conclusion is that Croatia became a state on 22 May 1992, and the ICTY lacks jurisdiction to consider any allegations against S. Milosevic that relate to events prior to this date.

 

III.               The Bosnia-and-Herzegovina indictment

The central issue of the Bosnian phase (and indeed, the case in general) is the charge of genocide, the most grave international crime. Yet it is precisely this charge that has been least supported by evidence presented by the prosecution. This was noted by the amici curiae, who pointed out that:

–                     the prosecution could not prove the existence of specific intent by S. Milosevic to commit genocide;

–                     the prosecution presented no evidence that the accused planned, aided, abetted, ordered, committed or in any other way aided, or abetted the planning, preparation or commission of genocide;

–                     the prosecution presented no evidence that genocide was the goal of the assumed JCE, and that existence of specific intent is contradictory with participation in a third-category JCE;

–                     the existence of specific intent contradicts the charges of command responsibility.

In its decision, the court considered the issue of genocide in contemporary international law in the following manner.

First, the court correctly noted that both the norms of international law (Convention on prevention and punishment of the crime of genocide, 1948) and the Tribunal’s Statute rely on the existence of specific intent to commit genocide. This intent is established through testimony. The court, however, referred to the Appeals Chamber decision in the Jelisic case, which says that the proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.[18]

The prosecution conceded it had not presented “sufficient” direct evidence, but it claimed all the “facts and circumstances of the case” it presented to the court were proof of intent by S. Milosevic to commit genocide of Muslims as an ethnic group.

It needs to be said that this is not merely a subjective assessment of the prosecution’s own efforts, but an open-faced lie. Genocide [supposedly] happened in Bosnia-Herzegovina, yet tens of thousands of Muslim refugees fled the civil war and found asylum  in Serbia, under Slobodan Milosevic’s presidency! This fact is familiar not just to the prosecution but to the world. So the court’s decision to accept this “elastic” interpretation of the prosecution is downright sad. However, we shall demonstrate that such a decision was motivated by factors far more serious that the prosecution’s “arguments.”

In its decision, the court said it would consider the testimonies concerning the 7 municipalities of Bosnia-and-Herzegovina. This is a defining fact. The prosecution offered up the idea, and the court accepted and supported, that of over 100 municipalities only seven were to be considered “territory of the Milosevic case,” on whose example they tried to prove genocide.

Having in mind that the prosecution listed a series of genocide charges (including the so-called “alternative” ones), the court separated out the five basic issues in which analysis was in order.

1.      Is there evidence upon which a Trial Chamber could be satisfied beyond reasonable doubt that the Accused was a participant in a JCE, the aim and intention of which was to commit genocide?

2.      Is there evidence that S. Milosevic was a participant in a JCE to commit other crimes than  genocide, and it was reasonably foreseeable to him that as a consequence of the commission of that crime, genocide, would be committed by other participants in JCE?

3.      Is there evidence that S. Milosevic aided and abetted in the commission of genocide?

4.      Is there evidence that S. Milosevic was complicit in the commission of genocide?

5.      Is there evidence that S. Milosevic knew or had reason to know that his subordinates were about to commit genocide, but he failed to take necessary measures to prevent the genocide or to punish the perpetrators thereof?

Answering the first question, the court invoked evidence given during the  testimonies, both of witnesses in the trial of S. Milosevic, and those in other trials. It stands out that the judges accepted as sufficient the statements of many witnesses that were obviously discredited. For example, expert witness E. Tabeau not only included economic migrants in her “analysis,” but maintained the validity of such an inclusion. She also remained faithful to her “methodology” even when the only international jurist – Judge Robinson – asked her if she was familiar with the definition of refugees under international law. The witness replied she was … and proceeded to insist on the accuracy of her claims! S. Milosevic replied by asking her a reasonable question – why were tourists not included in her analysis of refugees, then?

Other “sufficient” evidence were taken from other cases, and many of them were secret.

In answering the second question, the judges also used dubious testimonies as essential. Also, a part of this decision has been held confidential.

We would like to draw the special attention to the fact that the court classified assertions as “sufficient evidence”. Without exception, assertions cannot be evidence. Only facts can be evidence. Prosecution witnesses mostly offered only assertions (e.g. “He destroyed Yugoslavia!” or “I am convinced he did it!”). It is interesting that neither the prosecutors nor the court asked of those witnesses to back their assertions up with evidence. In my judgment, no less than half of the prosecution witnesses offered assertions only. One example is paragraph 286 of the court’s decision, which relies on the statement of the witness Rupert Smith (commander of NATO forces that bombed the Bosnian Serbs) that S. Milosevic “had to know” about the tragedy in Srebrenica. The paragraph itself is short on details, but if one looks at  the transcript of Smith’s testimony, his logic is clear: “R. Mladic knew because he was the commanding offices”[19]. The witness makes an assertion: S. Milosevic knew, because he met with Mladic!

No less “convincing” are the statements by W. Petritsch, who said he was “convinced that all the decisions were made by him and him alone”[20] .

What is shocking is not that the witnesses said such things, but that the court accepted such statements as “sufficient evidence”! Establishing the sufficiency of presented evidence means separating assertions from proof, even prima facie. As we can see, the court did not do this – and deliberately so.

From the standpoint of methodology, the conclusion of the court is very interesting: on the basis of “the inference that may be drawn from the evidence” concerning the previous question, the Trial Chamber “could be satisfied beyond reasonable doubt” the JCE existed, and had as its purpose genocide, that Milosevic was a participant, and had the intent to commit genocide.

But given the previous note of the judges that they hadn’t evaluated and analyzed the evidence they were considering, it remains a mystery as to how they managed to separate the sufficient evidence from other ones, and in what way they reached a conclusion “beyond reasonable doubt.”

Special attention needs to be paid to the portion of the decision addressing the second question. In order to do so, the Trial Chamber turned to the Tribunal’s “exclusive” theory of the JCE, formulated for the first time in the Tadic case. It was then established as a legal norm (more accurately, as a legal norm for this tribunal) that there were three categories of the Joint Criminal Enterprise, the last of which demands that the prosecution proves the following:

–         that the crime charged was a natural and foreseeable consequence of the execution of the JCE; and

–         the Accused was aware that such crime was a possible consequence of the execution, and that, with that awareness, he participated in that JCE.[21]

In other words, the court’s interpretation of the essence of third-category JCE is that the accused, by joining the JCE to commit certain crimes, bears the responsibility for other crimes if he could foresee that the consequence of his specific crime could be the commission of the other crimes by other members of the JCE.

It should be said that the very concept of the JCA is both illegal and defective. Neither the Tribunal’s Statute, nor international law, recognizes any “joint criminal enterprises,” let alone categories thereof. This exclusive invention of the Tribunal is nothing but arbitrary establishment of law, which directly contradicts the general principles of law. It is worth noting that some judges at the Tribunal are critical of this fabrication. Thus in his dissenting opinion in the case  Simic et al. judge Per-Johan Lindholm said he distanced himself from the theory of JCE “in this particular case and in general,” considering it a waste of time that has nothing to do with the work of the Tribunal or the evolution of international law.[22]

Even though its response to the second question takes up about 1 percent of the total decision, it has to attract the utmost attention of international jurists.

In just five lines (as if this didn’t merit any more attention), the court refers to the decision of the Appeals Chamber in the Brdjanin case of 19 March 2004. This decision, reached in a rush to prepare the decision of Trial Chamber in the Milosevic case, had the obvious task to create the necessary justifications for the Milosevic case. In essence, it established that if certain participants in a third-category JCE committed the crime of genocide, then a participant that did not have that as a goal will bear responsibility for genocide nonetheless! In this way the ICTY abolished the fundamental principle of culpability for genocide in international law – the necessity of proving the specific intent. More than that, the direction of such a ruling is obvious.

Further complicating the matters is the absence of the ability to appeal the decisions of the Appeals Chamber. Its decisions, no matter what lawlessness they assert, are binding on the trial chambers.

At the same time, it’s hard not to agree with the arguments of one of the former amicus curiae, M. Vladimiroff, presented during the hearing on 29 October 2001. He justifiably pointed out that the decisions of the appeals chamber weren’t as inviolate as previously thought. If the Appeals Chamber made a decision that contradicted the Statute and Rules of the Tribunal, the trial chambers could base their decisions directly on the Statute and Rules of procedure. All this applies, of course, to international law as well. In case the appeals chamber makes a decision contrary to international law, the trial chambers have not only the ability but an obligation to apply the norms if international law directly.

This is why it isn’t unusual that the Trial Chamber making the decision in the Milosevic case simply referred to the Brdjanin decision.[23]

Let us recall that the prosecution accused S. Milosevic (apparently not convinced of the charges) both for “committing genocide” and at the same time for “complicity to commit  genocide.” Special importance in the process was given to the theory of command responsibility. The Brdjanin decision “solved” (even on the Appeals level) all the contradictions in that respect as well. Still, it is perfectly obvious that under international law – as opposed to the “Hague Tribunal law” – it has been clearly established that charges of genocide on grounds of command responsibility are invalid, because to prove genocide one must demonstrate specific intent – the one the Tribunal abolished so cavalierly.

Therefore, the ICTY used all the available means, including not only dubious and improper interpretations of law, but also absolutely illegal actions, to preserve the charge of “genocide,” most important to the public opinion. This very clearly demonstrated the prejudice of the tribunal, and its treatment of both the accused and the international law.

 

*****************

Activities of the ICTY in general, and in particular in the process against Slobodan Milosevic, are cause for serious concern. Its violations of international law and general principles of law are too serious to allow international jurists to remain silent.

The latest decisions of the Tribunal, including the one from 16 June 2004, have shown that the judges are willing not only to freely interpret international law, but to redefine it outright to suit their particular needs at the moment. Unfortunately, that need has been indicated clearly: the unconditional conviction of Slobodan Milosevic, evidence notwithstanding. Judging the record of the ICTY in general, and its case against Slobodan Milosevic in particular, one can conclude that it represents a serious threat to both the letter and the spirit of international law.



[1] During his testimony at the Milosevic trial, the already-released Erdemovic could not prove his allegations. Quite the contrary, Milosevic convincingly demonstrated the facts proving otherwise. For more details, see transcript of Tribunal session on 25 August 2003.

[2] E.g. see the speeches by permanent representative of the Russian Federation to the UN, S. Lavrov, at the UN Security Council meetings on 20 June 2000, 21 November 2000, and 27 November 2001; // UN documents: S/PV.4229, S/PV.4161, S/PV.4429

[3] One of the witnesses admitted he testified in exchange for “certain promises” – whose content remained secret, because the session was hastily closed to the public. Another witness said he was offered immunity from charges in exchange for bearing false witness against Milosevic.

[4] See: Prosecutor v. Slobodan Milosevic, Decision on Motion for Judgement of Acquittal of 16 June 2004.

[5] See transcripts of cross-examinations of witnesses Bakalli, Ashdown, Petritsch, Vollebaek, Mesic, Walker, Budding, and many, many others.

[6] E.g.: the testimonies of witnesses Kristan, Lazarevic, Bakalli, Samardzic, etc.

[7] Witness Radomir Markovic, 24-26 June 2002.

[8] First of all – Brdjanin, Krnojelac, Stakic, Vasiljevic, Simic and Tadic trials.

[9] This is when NATO’s aggression against the FRY began; in ICTY’s documents, it is referred to as “the bombing campaign.”

[10] See: Trial Chamber Decision of 16 June 2004, para 34.

[11] Indeed, Article 7.2.d of the ICTY Statute says that “Deportation or forcible transfer of population means…”

[12] See Prosecutor v. Stakic, Judgment of 31 July 2003, paras 670-680

[13] See: Yugoslavia Through Documents. From its creation to its dissolution, ed. by Trifunovska S., Martinus Njihoff Publishers, The Hague, 1996, p. 1020.

[14] See: Brownlie I., Principles of Public International Law, 5-th edition, Oxford University Press, 1998, p. 70.

[15] See Shaw M., International Law, 4-th edition, Grotius Publication, Cambridge University Press, 1997, p. 140

[16] See: Henkin L., International Law: Politics, Values and Functions. General Course of Public International Law. // Recueil des Cours de Droit International, The Hague, vol.216 (1989), p.32.

[17] See: Duursma J., Fragmentation and International Relations of Micro-States: Self-determination and Statehood, Cambridge University Press, 1996, p. 127-128

[18] See: Prosecutor v. Jelicic, Appeals Chamber Judgment , para 47.

[19] See: General R. Smith’s testimony, transcript of the 9 October 2003.

[20] See: W.Petritsch testimony, transcript of the 2 July 2002.

[21] See: Prosecutor v. Tadic, Appeals Chamber Judgement of 15 July 1999, paras 196-204.

[22] See:  Prosecutor v. Blagoje Simic, Miroslav Tadic, Simo Zaric, Separate and Partly Dissenting Opinion of Judge Per-Johan Lindholm of 17.10. 2003, paras 1-5.

[23] See:  Prosecutor v. Brdjanin, Appeals Chamber Decision on Interlocutory Appeal of 19 March 2004.

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