WHATEVER the outcome of the trial of Slobodan Milosevic, which begins on 12 February and may last for several years, the International Criminal Tribunal for the former Yugoslavia has already condemned itself. For it is difficult to imagine a more perfect paradigm of injustice than the sequence of events which has led to the proceedings that get underway next week.
Let us leave aside for a moment the manner in which Milosevic was brought to The Hague. His transfer there in exchange for the promise of millions of dollars in aid, and in direct defiance of a ruling by the Yugoslav constitutional court, was the very quintessence of illegality. Far worse is the behaviour of the prosecutor and the judges, who now betray such a harmony of institutional interests that it is impossible for anyone to receive a fair trial at The Hague.
The judges, indeed, have behaved as if they were just another arm of the prosecution; the prosecution, in turn, behaves in a brazenly politicised manner. On 1 February, the Appeal Chamber ruled in favour of a prosecution motion that all three indictments against Milosevic – for Kosovo, Bosnia and Croatia – should be bundled together into one single trial. Yet there is only one conceivable explanation for this judicial shenanigan: that the indictment of Milosevic for Kosovo is irredeemably flawed – the very indictment which constitutes the moral justification for the 78-day war that Nato fought against Yugoslavia in 1999.
That American-led bombing was justified by the claim that genocide was being planned and executed against the ethnic Albanian population of Kosovo. Throughout 1999 and 2000, the tribunal and various self-appointed Balkan experts alleged that more than 11,000 Albanian civilians had been murdered, and that a plan existed, called Operation Horseshoe, to drive out half the population. These claims have now been formally discarded by the tribunal.
The indictment issued in July 2001 against Milosevic and his colleagues, which was amended following the exhumation over two years of more than 2,000 bodies, now accuses them of complicity in the deaths of ‘hundreds of Kosovo Albanian civilians’. It lists the names of 577 dead people, mostly men of fighting age.
When asked by Le Monde last year why no charge had been brought for genocide in Kosovo, the chief prosecutor, Carla del Ponte, replied, ‘Because there is no evidence for it.’ Yet if, as Nato claimed at the time, the Yugoslav authorities had really intended to destroy the ethnic Albanian population of Kosovo, there would be no difficulty at all in proving genocide.
Instead, the ICTY indictment makes no reference to Operation Horseshoe, no doubt because it was rumbled in 2000 as a pure invention of Nato war propaganda.
Had a trial been allowed to go ahead, therefore, on the basis of the Kosovo war alone, the weakness of Nato’s justification for attacking Yugoslavia would have been laid bare for all to see. Milosevic might even have been acquitted of any criminal responsibility for the deaths of the hundreds of Albanians listed, even if it could be shown that they were all civilians and not KLA fighters.
To forestall this eventuality, in October and November last year the prosecutor quickly brought out two new indictments, for Croatia and Bosnia. She evidently hoped that the weakness of the Kosovo indictment would be quietly buried in the general melee And on 1 February the judges of the Appeal Chamber acquiesced in the prosecution’s demand that all three indictments should be merged into one single trial. This is in direct contradiction to one of the most fundamental principles of customary extradition law, namely that a defendant may not be tried for a crime other than the one for which he was originally sent for trial.
The events in Croatia occurred in 1991 and 1992, those in Bosnia from 1992 to 1995. The Hague tribunal was itself created in 1993. During the tribunal’s eight years of existence, the name of Slobodan Milosevic has been on everybody’s lips.
Indeed, a formal investigation into his personal responsibility for the Bosnian war (in which scores of thousands of people were killed) was opened in 1995. It found that there was no evidence to indict him, although it did indict the Bosnian Serb leaders. Are we now really supposed to believe that, ten years after Vukovar and seven years after Srebrenica, the prosecutors of the ICTY have only just realised that Slobodan Milosevic was president of Serbia at the time?
It seems obvious that these last-minute indictments over Croatia and Bosnia were issued to cover up the weakness of the Kosovo indictment. And the judges have connived in this. When Milosevic arrived at The Hague on 28 June 2001, he was indicted only for Kosovo; the judges should therefore have dismissed the new Croatia and Bosnia indictments and waited until Milosevic had been tried for Kosovo before admitting any new proceedings.
Even worse than that, there is evidence that the tribunal may have made a pact with the Bosnian Serb leadership in order to achieve a conviction of Milosevic – i. e. , with the very people most directly responsible for most of the killing in Bosnia. In January 2001, one of the tribunal’s most senior indictees unexpectedly turned herself in to The Hague. Mrs Biljana Plavsic, a darling of the West, was president of the Bosnian Serb republic from 1996 to 1998; she was a friend of Arkan and once said that ethnic cleansing was ‘natural’; and she was a member of Radovan Karadzic’s government in the Serb Republic of Bosnia throughout the bloodiest periods of the Bosnian war.
When Mrs Plavsic handed herself in, it became clear immediately that she was going to receive very lenient treatment by the tribunal because she had offered to testify against Milosevic. Like many Bosnian Serbs, she hates Milosevic because she thinks he abandoned them at Dayton: Mrs Milosevic, for her part, calls Mrs Plavsic ‘a psychopath’.
But the spokesman for the prosecutor, Florence Hartmann, said in January 2001, ‘Mrs Plavsic is in a position to give us a lot of information. She has co-operated by surrendering and she can continue to co-operate by testifying. We are hoping she will give evidence against other suspects.’
After a couple of in-camera hearings, indeed – the contents of which, thanks to the tribunal’s draconian secrecy rules, will never be revealed – Mrs Plavsic was told that she would be released pending her trial.
In August last year, this woman who has been indicted for genocide the most serious crime in the tribunal’s canon – was allowed to return to her home in Belgrade, where she presumably now sits comfortably with her cats. In the looking-glass world of so-called international justice, therefore, someone who was far more directly involved in the events in Bosnia than Milosevic was is being treated leniently, simply because she has agreed to denounce her old enemy, the former Serb president.
The tribunal vehemently denies that any plea-bargaining has occurred between it and Mrs Plavsic. But these denials do not square with the ICTY’s own rules and practice. A Bosnian Croat who pleaded guilty to executing 100 Muslim civilians at Srebrenica in 1995 was given a token sentence of five years in prison because he co-operated with the tribunal. It is inevitable, therefore, that the evidence of Mrs Plavsic, Milosevic’s old political enemy, will be used to obtain his conviction. Nato, moreover, has still not arrested the two Bosnian Serb leaders, Ratko Mladic and Radovan Karadzic.
In 1995, Milosevic’s Western opponents alleged that an indictment against him was suppressed for political reasons, because he was the West’s favourite peacemaker at Dayton. The fact that the political wind has now changed does not make the decision taken last Friday any more justifiable, or the Hague tribunal any less of a political plaything.
Copyright 2002 The Spectator Limited
