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By George Szamuely | May 28, 2004 Editor: John Gershman, Interhemispheric
Resource Center (IRC) It is always fascinating to watch the eagerness with which
so-called progressives unquestioningly accept an official history
full of virtuous U.S. officials and villainous savages trying the
patience of the peaceful, law-abiding Great Powers. Case in point:
the wars in the former Yugoslavia, and Stacy Sullivan’s recent
account of them in Foreign Policy In Focus (http://www.fpif.org/commentary/2004/0402milosevic.html).
The actual sequence of events that caused those wars is very
different from the reporting of the establishment media and,
unfortunately, much of the progressive media. According to this
story, the wars of the past decade were all started by the Serbs,
who sought to destroy Yugoslavia and turn it into a mono-ethnic
Greater Serbia. The West, well-meaning and indecisive as ever, stood by
unwilling to intervene as the Serbs went on their rampage to carve
out lands belonging to the other nations of Yugoslavia and drive
out all non-Serbs. Not until the United States was finally moved
to act to bring the Serbs to heel was peace and independence
possible. And, thanks to the efforts of the United States, the
International Criminal Tribunal for the Former Yugoslavia came
into being to ensure that there would be no impunity for Serb
leaders and their campaign of genocide and ethnic cleansing.
Today, tribunal judges supposedly toil away on behalf of the war
crimes’ victims, painstakingly trying to balance judicial
fairness against the need to ensure that such things never happen
again. The problem is that not one part of this fairy tale is true.
The wars in Yugoslavia started with the electoral triumph of
anti-Communist nationalists in Bosnia, Croatia and Slovenia in the
country’s first multiparty elections in 1990. Slovenia and
Croatia, with encouragement from abroad, particularly Germany and
the United States, pushed for independence right away, in
violation of the constitution of Yugoslavia. Serbia’s position,
in accord both with the Yugoslav constitution and with democratic
aspirations, was that the constituent nations of Yugoslavia could
neither be forced to stay nor forced to leave Yugoslavia against
their will. The so-called international community’s unseemly and
irresponsible recognition of independent Slovenia and Croatia in
1991 was not only flagrant interference in Yugoslav internal
affairs, it violated innumerable international treaties such as
the Helsinki Final Act, the Montevideo Convention and the United
Nations Charter. Sabotage of peace plans, bad faith negotiations and a yearning
to resort to force characterized U.S. policy in Yugoslavia
throughout the 1990s. On May 30, 1992, U.N. Secretary General
Boutros Boutros-Ghali issued a report commending the government of
Yugoslavia for the withdrawal of its armed forces from Bosnia and
criticizing Croatia for its refusal to withdraw its armed forces,
the U.S. sought to suppress this report and to push the United
Nations to impose sanctions against Yugoslavia, though not
Croatia. Every proposal put forward by the E.U., like the
Vance-Owen plan and the Owen-Stoltenberg plan was sabotaged by
Washington as it egged on its proxies, Bosnia’s Muslims, to
reject everything on the table in favor of the absurd and
unrealistic option of a unitary state of the three ethnic
groups—something that the United States had insisted couldn’t
possibly work at the Yugoslav federal level. During this time, the United States was secretly arranging air
drops of weapons to Bosnia’s Muslims, in violation of the United
Nations arms embargo, as well as facilitating the flow of arms and
mujahedin fanatics into Bosnia from Iran and Saudi Arabia. In
addition, the United States, Great Britain and Germany were arming
and training the Kosovo Liberation Army. The objective was to
instigate terror and mayhem so as to provoke a reaction from the
Yugoslav authorities that could then be designated a humanitarian
crisis and used as a pretext for the armed attack that the Clinton
administration had been seeking to launch for years. However, the
Serbs were no fools and they refused to be provoked. Consequently,
two further frauds were needed. First, there were the alleged
killings at Racak. And then there were the bogus settlement
negotiations at Rambuillet. On Jan. 15, 1999, following a military operation by Yugoslav
armed forces against a KLA stronghold at Racak, KLA leaders led
OSCE observers to a gully where 45 bodies were piled on top of
each other. Without waiting for any investigation, the United
States, through Ambassador William Walker, immediately announced
that the Serbs had carried out a massacre of unarmed Kosovo
Albanian civilians. As we learn more about Racak, the story of the
massacre is becoming increasingly hard to sustain. On March 17,
1999, a week before its onslaught on Yugoslavia, NATO organized a
press conference at which Helena Ranta, the leader of the Finnish
forensic team hired by the OSCE to investigate Racak, announced
her findings. Though the Finnish team’s report was never
published, the U.S. government, with the New York Times in tow,
touted her inconclusive findings as confirmation of William
Walker’s initial statement that a massacre had taken place at
Racak. Recently, Ranta revealed the pressure she was under to make her
findings conform with NATO requirements. In an interview with
Berliner Zeitung, she declared that she knew at the time of her
investigation that there were: As for the negotiations at Rambouillet, U.S. bad faith was
nicely summarized by a State Department official who boasted
later: “We intentionally set the bar too high for the Serbs to
comply. They need some bombing, and that’s what they are going
to get.” If the Serbs rejected a deal, they would get bombed; if
the KLA rejected a deal, the U.S. would simply shrug its
shoulders. Thus, the United States insisted on including Appendix
B in any accord knowing full well that Serbia, like any other
sovereign state, would reject a proposal to allow NATO forces to
enjoy unrestricted movement throughout the country as well as
complete criminal and civil immunity. Except for Appendix B, Slobodan Milosevic is on record as
having supported every single peace plan the so-called
international community proposed. Yet Stacy Sullivan worries that
he might escape a conviction for genocide. That all the evidence
points to the opposite conclusion, that his government, unlike
that of the United States, sought peace even if it entailed the
loss of the historic achievement of the state of Yugoslavia, does
not matter in the slightest. The U.S. got its bombing of
Yugoslavia that was not justified by any Security Council
resolution, any imminent threat of attack on a NATO power, any
threat to any of Yugoslavia’s neighbors or indeed any
humanitarian crisis since the refugee flow out of Kosovo began
after the bombing. U.S. policy in the Balkans was cynical and war-mongering. It
seems strange that a journal of progressive opinion should
unquestioningly accept the doctrine that small nations should
simply accept the diktats of great powers. Nor should it
unquestioningly accept its claims about humanitarian crises when
even the most superficial survey of the historical record will
show that it was the policies of the Great Powers that caused
these crises. Finally, it is surprising that it unquestioningly
accepts that a court largely funded and staffed by the very great
powers that had caused so much havoc in Yugoslavia ($17 million in
2003 from the U.S. alone) should act as a disinterested impartial
judicial body. To prove that day is night a very peculiar kind of court had to
be created, one that falls outside of the two chief sources of
international criminal law, treaty law and international customary
law. The Security Council possesses neither legislative nor
judicial functions. It can neither create new international law
nor make binding interpretations of existing international law.
The UN has no jurisdiction or authority to try, punish or imprison
individuals, not even those who have violated international law.
Nor is punishment of individuals for international crimes among
the Security Council’s enumerated powers listed in the UN
Charter. The 1948 Genocide Convention explicitly states that
national courts are the appropriate venue to try individuals
accused of genocide. According to the ICTY’s statute, the waging of aggressive war
is not a crime that falls within its domain. This is a curious
omission. The most important war crimes court since Nuremberg has
decided to dispense with the most important crime under the
Nuremberg standard. This is scarcely surprising. Under its rubric,
NATO would undoubtedly have been guilty of a crime. Every
jurisdiction in the world plainly recognizes the difference
between violence committed while acting in self-defense and
violence committed while acting aggressively. Given this, it is hardly shocking that the court violates every
judicial norm whether in the civil law or common law tradition.
Indictments are often kept secret and suddenly sprung on the
court’s victims. Bail is rarely granted, and detainees can wait
years in prison before their cases come to trial. Prosecutor and
court are one and the same. There is no jury. Appellate court and
trial court are also one and the same. The court is answerable to
no one. There is no jury. The court is financed by interested
parties like the U.S., assorted NATO governments, U.S.
corporations and, of course, the ubiquitous George Soros—this in
fact violates the tribunal’s own statute that funding can only
come from the United Nations. The ICTY’s procedures would be unacceptable in any serious
jurisdiction. Hearsay (essentially rumor and gossip) is
admissible. Testimony presented at one trial can be introduced as
evidence in another trial, without any cross-examination.
Prosecutors can present pretrial witness statements as witness
trial testimony. Since statements made to, and prepared by, the
prosecutor, are essentially prosecutor statements, it means
prosecutorial assertions are treated as evidence in chief.
Prosecutors can introduce illegal wiretaps whose authenticity has
not been established and whose provenance is kept secret. As
evidence in a trial of one of the most serious charges
known—genocide—any self-respecting court would throw them out. Witnesses can testify anonymously or even by videotape.
Moreover, the same judges preside over a number of trials at one
and the same time in which the same issues are being presented and
argued over, which is clearly prejudicial to all of the
defendants. Another innovation is the giving of multiple
statements, to enable witnesses to remember more and more and
thereby to ensure that their statements get closer and closer to
the prosecutorial or official version of events. Prosecutorial
misconduct is rampant. Witnesses are blackmailed using the threat
of indictment to compel them to come up with the right version of
the events. Much of the proceedings take place in closed session,
ostensibly to protect witnesses but, more likely, to protect the
court from serious scrutiny. The tribunal can alter its procedures
and rules of evidence as it goes along and apply it ex post facto
to ongoing cases. Prosecutors, unlike defense attorneys, take part
in this rule-changing process. With so many rules rigged in favor of prosecutors, much of what
takes place at the ICTY has the character of something out of
Alice in Wonderland: “Alice laughed: “There’s no use
trying,” she said, “one can’t believe impossible things.”
“I daresay you haven’t had much practice,” said the Queen.
“When I was younger, I always did it for half an hour a day.
Why, sometimes I’ve believed as many as six impossible things
before breakfast.” Stacy Sullivan appears to be a devotee of the
Queen. (George Szamuely, a writer based in New York City, was born
in Hungary and educated in England. He has served as an associate
at the Manhattan Institute, editor at Freedom House, film critic
for Insight, research consultant at the Hudson Institute,
and as a weekly columnist for the New York Press.) Reposted for fair use from "Foreign Policy in Focus".
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