There is a big difference between “being proven guilty of a crime” and “being convicted of a crime.” The former is the result of the presentation of evidence in a fair trial, while the latter is the administrative decision reached by the court – regardless of evidence or fairness. However, the population has been induced into asking whether “he was convicted” rather than “was he guilty.”
ICTY’s show-trial confessions are degrading, and an element of the ICTY PR campaign against Yugoslavia, Serbs and Serbia. However, they are an important aspect of another problem. They are symptomatic of a deeper problem.
In the case of the ICTY, one can never pinpoint the problem by using rule of law standards. The ICTY was not a rule of law institution and was never meant to be. In fact, the ICTY – along with the Rwanda Tribunal in Arusha and the ICC, modeled after them – was created to destroy the notion of rule of law standards in the international arena.
Back in 2004, I had written comments to a jurist’s criticism of the ICTY, from the point of view of rule of law standards. I am enclosing an excerpt from those comments here:
(…)
The proceedings taking place in The Hague are a danger to the international legal order. No national system will escape its influence for long, no matter how well founded it had been in justice by rule-of-law proceedings. The proceedings in the ICTY will have a repercussion on the conditions of work of all jurists.
I would like to add a couple of comments and points that might enhance the presentation of your arguments:
The Tribunal and Rule of Law Courts
You compared the procedural practices of the Tribunal to the norms of courts functioning under rule of law. In other words, you give the tribunal the benefit of the doubt. You seem to take it for granted that the tribunal is first and foremost a judicial organ. Or at least one can say that you leave those who do take this for granted in the bliss of their ignorance.
A juridical body concentrates on the review of evidence to establish the degree of personal guilt of the defendant in a trial process that protects the defendant from becoming a scapegoat to provide a “guilty” conviction regardless of whether the defendant participated in the commission of the crime – if, in fact, a crime had actually been committed.
But the tribunal works on the principle, “guilt is determined by indictment, (‘he who is indicted must be guilty’) and who gets indicted is determined by the political necessity to apply pressure.”
Unlike judicial bodies working under rule of law, the tribunal’s job is to maintain and fortify the notion that Serbs per se are the criminals of the Yugoslav civil wars that their political demands for equal treatment are in fact criminal acts. The defendant is not put on trial for what he has done but for what he was born. The same acts committed by members of other ethnic groups are either not considered “criminal” or if so certainly “less criminal” when committed against Serbs and in any case less criminal than when Serbs commit them.
You quote the appeal chamber – without going into the implications of its statement. The appeal chamber writes:
‘It must be acknowledged that in portions of its Judgment, the Trial Chamber used imprecise language which lends support to the Defence’s argument. The trial Chamber should have expressed its reasoning more carefully’.[1]
This is an oblique admission that the judges of the tribunal are not to let themselves be swayed by the juridical argumentation or even evidence presented by the defense, even – no, especially – if the defendant is innocent! This is but another indication that the tribunal is not a juridical body.
Early in the history of the tribunal there was another acknowledgement of the fact that the tribunal is political/propagandistic rather than judicial. The first of the two indictments on charges of genocide eliminated Karadzic and Mladic as partners in the Dayton negotiations. That this was the political intent behind the indictments can be inferred from a statement made during the July 1995 genocide indictment hearings by Antonio Cassese, then president of the International Criminal Tribunal. Cassese said:
“The decision [to indict on charges of genocide] represents a decisive step. Let us see who will sit down at the negotiating table now, with a man accused of genocide.” He concluded: “That gentleman will not be able to take part in peace negotiations.” [2]
That this was no mere idle threat can be seen from the fact that the Serbs of Bosnia had to content themselves with Slobodan Milosevic to represent their interests in the Dayton negotiations.
(But with the independence of Bosnia from Yugoslavia, Milosevic was a statesman of a different nation. The extent, to which he really represented the interests of the Serbs of Bosnia, can also be judged from the fact that he agreed to their leadership being indicted and eventually tried in The Hague. That he preceded them as a defendant is an irony of history.)
More recently the tribunal judge Claude Jorda repeated the same thesis:
It is not true that this tribunal only prosecutes second- and third-rate criminals, as some allege. The penal policy of the prosecution is bringing [the role of] ever higher commanding positions to light and investigating ever higher circles. For example, the case against Misters Karadzic and Mladic. They were indicted by this tribunal.
When one says that this tribunal cannot bring sanctions, this is true, if it is referring to convictions. These two people could not be convicted because they were never arrested. But already simply the indictment against Misters Karadzic and Mladic played an important role in Dayton. The indictment had prohibited Misters Karadzic and Mladic from coming to Dayton, Paris or London. And finally, they were even definitively forced out of political life in their own countries. This is also a contribution of an international justice.
Perhaps we cannot function as one would expect from a national justice system, as far as the investigation, prosecution, conviction, incarceration and penitence is concerned. It is true that we do not have the whole array of penalties at our disposal. But still we have a deterrent effect. And above all we can point, at any moment, at a universal crime committed by a suspected criminal.[3]
I don’t know if giving the tribunal the benefit of the doubt as a juridical institution is not going to limit the effectiveness in your argumentation vis à vis other jurists. For the most part, they accept in good faith (really on blind faith) the decisions as having been handed down by juridical institutions. It is in this non-juridical context that the ultimate threat of such an imposter institution – and the blind faith accompanying it – becomes clearer.
An indication of the danger is Jorda’s statement in itself. There was no outcry from jurist organizations. Jorda made the statement in this clarity, I believe, because he knows that there will be no outcry, that the notion of rule of law – even among jurists – has degenerated to such an extent that it has become an anachronism.
The “international tribunal” system is designed to delude the general population – but particularly opinion makers – into believing that they are dealing with a court of law.
Nulla poena sine lege (“no penalty without a law”)
The basic principle of rule of law is “nulla poena sine lege” (“no penalty without a law”). There must be laws stipulating what exactly constitutes which crime and sets the limits of the punishment for the guilty.
Therefore, a court of law has the task of judging whether 1) a crime has been committed as stipulated by existing laws, 2) if the evidence is sufficient to find the defendant guilty of having been personally involved in the commission of that crime, and 3) penalizing the convicted in accordance with the penalties laid out by the law for that particular crime.
No laws have been internationally legislated stipulating what constitutes the crimes allegedly “tried” by the ICTY and therefore no laws determining what punishment may be handed down. This is why the ICTY arbitrarily makes up its own “laws” and the “punishment” it hands down as it goes along. The defendants are convicted on the basis of the ICTY’s statutes.
This is also demonstrated in the indictment read July 31, 2008 by Judge Alphons Orie to the defendant Dr. Radovan Karadzic. He read:
“Mr. Karadzic you are charged with one count of genocide UNDER ARTICLE 4 OF THE STATUTE OF THE INTERNATIONAL TRIBUNAL; with one count of complicity in genocide UNDER ARTICLE 4 OF THE STATUTE; with five counts of crimes against humanity UNDER ARTICLE 5 OF THE STATUTE and with four counts of war crimes UNDER ARTICLES 2 AND 3 OF THE STATUTE.”[4]
No one on the planet is held to abide by the statutes of the ICTY! They are not laws and are binding for no one.
The question separating “punishment” – the fundamental concept in criminal justice – from sadism revolves around the question of guilt or innocence. Punishment implies retribution for a committed wrong.
When proof of personal guilt no longer plays a role in the verdict, the verdict is no longer “punishment.” Even revenge – so extolled by victim’s family members for wanting to see someone, regardless of guilt, pay “for THEIR pain” – is premised by a wrong that has been committed by that particular person.
There is a big difference between “being proven guilty of a crime” and “being convicted of a crime.” The former is the result of the presentation of evidence in a fair trial, while the latter is the administrative decision reached by the court – regardless of evidence or fairness. However, the population has been induced into asking whether “he was convicted” rather than “was he guilty.”
Plea Bargaining
This is why plea bargaining is so important for kangaroo courts such as the international tribunals. One need only extort a guilty plea from the defendant and all other evidence becomes superfluous. “He admitted, didn’t he?”
So, in order to mask their absolute lack of legal legitimacy, the kidnapped persons are placed under pressure that they will be “convicted” no matter what, so they can “choose” the seriousness of their crime. They are not “cajoled” into pleading guilty – taking a plea bargain. Their “guilty plea” is extorted. The arbitrary power of the tribunal and the absolute powerlessness of the defendant is the point of leverage for extortion of the plea bargain.
Show trial declarations are merely an enhancement of the plea-bargaining process.
Endnotes:
[1] Krstic, Appeals Chamber, para. 22.
[2] https://www.newenglishreview.org/Ares_Demertzis/Bill_Clinton’s_Bastard_Army
[3] From a TV documentary: “Au Nom de l’Humanité: Le Tribunal de la Haye” by Edina Ajrulovski, shown on ARTE March 22, 2000
[4] https://www.democracynow.org/2008/8/1/headlines/radovan_karadzic_appears_before_war_crimes_tribunal