“There is a general sense among prosecutors that the Appeals Chamber first decided that Krstic did not merit conviction as a principal perpetrator of genocide but that, for ‘political’ reasons, it did not want to set aside the finding that the massacres around Srebrenica constituted genocide. The result, one prosecutor said, made it seem as if ‘an eighteen-year-old law clerk’ had written the judgment on the basis of a decision reached ‘by academics and diplomats’. In fact, a law clerk involved in the drafting confirmed to embassy legal officers that the chamber had given the drafters general directions, ‘the bottom line,’ and that the law clerk drafters had to determine how to get there.”
Wikileaks Cable 04THEHAGUE1033
At a ceremony marking the 20th Anniversary of the ICTY’s establishment, Tribunal President Theodor Meron spoke of the Tribunal’s “profound contributions to global efforts to battle impunity” and the international community’s “resolve that there be no impunity for any individual, even the most senior political or military leader.”[1]
In spite of the Tribunal’s lofty rhetoric about “the fight against impunity,” NATO leaders have enjoyed obvious impunity.
In 1999 NATO warplanes attacked civilian targets in Serbia, which included Radio-Television Serbia’s Belgrade studios where 16 civilians were killed and a passenger train crossing a bridge in Grdelica where another 14 civilians died in that attack. The ICTY didn’t indict anyone from NATO.
The ICTY did, however, indict and convict Gen. Dragomir Milosevic for shelling the TV Sarajevo building and shooting at trams and busses in Sarajevo. It stands to reason that if it’s a war crime to attack a TV Station in Sarajevo, then it’s a war crime to attack a TV station in Belgrade. If it’s a war crime to shoot at a tram in Bosnia, then it’s a war crime to bomb a commuter train in Serbia. The double standard that’s being used here is obvious to see.
NATO leaders know that they have impunity. When reporters asked Lester Munson, Communications Director for the U.S. House of Representatives Committee on International Relations, if he was concerned that the Tribunal might indict NATO officers for bombing civilian targets in Yugoslavia he answered, “You’re more likely to see the UN building dismantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal.”[2]
The ICTY likes to hold itself out as an independent UN institution, but it’s obvious who is really pulling the strings.
In an interview with BBC Radio, former U.S. Assistant Secretary of State Richard Holbrooke said that “When President Clinton brought me back to Washington to take over the Bosnia negotiations, I realized that the War Crimes Tribunal was a huge valuable tool. We used it to keep the two most wanted war criminals in Europe – Karadzic and Mladic – out of the Dayton peace process and we used it to justify everything that followed.”[3]
The Tribunal is so subservient to NATO and the United States that Holbrooke said it was a “tool” and that he “used it to justify everything”. Awareness of that subservience is why NATO leaders know that they can count on the impunity that the ICTY gives them.
During the 1999 NATO bombing, NATO spokesman Jamie Shea boasted that “NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers.” According to Shea, “Without NATO countries, there would be no International Court of Justice nor would there be any International Criminal Tribunal for the Former Yugoslavia, because NATO countries are in the forefront of those who have established these two tribunals, who fund these tribunals, and who support on a daily basis, their activities.”[4]
U.S. State Dept. cables leaked to the website Wikileaks don’t show any evidence of the U.S. Government giving explicit orders to the Tribunal, but they do indicate that Tribunal personnel “know which side their bread is buttered on” and that they behave accordingly.
The cables show that when the Tribunal needs money to retain staff and finance their operations, they go hat in hand to the U.S. Embassy in The Hague. A cable dating from 2004 says, “The Chief Prosecutor and Registrar of the International Criminal Tribunal for the former Yugoslavia (ICTY) urged Ambassador for War Crimes Issues Pierre Prosper to weigh in with UN Headquarters to help solve two emerging budget and personnel crises.”
The cable explains that “Significant member state arrears to the organization have prompted UN headquarters to impose a hiring freeze on the ICTY” and that during the meeting with U.S. officials “Del Ponte political advisor Jean-Daniel Ruch noted that in a brief visit to the Russian UN mission it became evident that the payment of their arrears was only a remote possibility.”[5]
How interesting that a supposedly “independent” UN Tribunal would need the U.S. Government to act as an intermediary between itself and UN Headquarters.
The Tribunal is shilling for American interests because they’re getting money and support from the United States. They’re not going to indict anyone from NATO because if they did they know that the U.S. Government wouldn’t help them anymore.
The cables show that ICTY personnel disclosed confidential information to the American Embassy. Carla del Ponte disclosed the contents of Slobodan Milosevic’s confidential witness list to the Americans.[6] The unauthorized disclosure of confidential ICTY filings is a violation of Rule 77(A)(ii) of the ICTY’s rules, but she did it anyway.
Tim McFadden, the head of the ICTY’s UN Detention Unit, went to the American Embassy and disclosed details about Slobodan Milosevic’s medical condition, his mental state, details about his daily routine, and even personal details about his relationship with his wife and the contents of their telephone conversations.[7]
The cables show that the ICTY’s judges are motivated by money and personal interest. According to one cable, “The newly appointed President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), judge Patrick Robinson, recently informed ICTY registrar Hans Holthuis that he would not recommend that the Secretary General reappoint Holthuis for a third four-year term. Holthuis was informed of this decision on November 17, Robinson’s first day as president and less than two months before the end of Holthuis, term. This decision comes at the same time that the judges are lobbying for increased pension benefits. We believe that this decision is in part because the President does not feel that Holthuis has done enough to lobby for increased pensions.”[8]
It’s difficult to see why the Judges feel that they’re entitled to more money, when according to these cables they aren’t even the ones who write the verdicts.
When the ICTY Appeals Chamber handed down its verdict in the Radislav Krstic genocide trial, American embassy personnel in The Hague reported back to Washington that “There is a general sense among prosecutors that the Appeals Chamber first decided that Krstic did not merit conviction as a principal perpetrator of genocide but that, for ‘political’ reasons, it did not want to set aside the finding that the massacres around Srebrenica constituted genocide. The result, one prosecutor said, made it seem as if ‘an eighteen-year-old law clerk’ had written the judgment on the basis of a decision reached ‘by academics and diplomats’. In fact, a law clerk involved in the drafting confirmed to embassy legal officers that the chamber had given the drafters general directions, ‘the bottom line,’ and that the law clerk drafters had to determine how to get there.”[9]
Rather than the evidence leading to the findings, the opposite was done with the Krstic Appeal judgment. The people who wrote the judgment were given the conclusion that they were supposed to reach, and then they had to “determine how to get there.” But perhaps the most remarkable thing about this cable is the admission that politics influenced the Tribunal’s classification of Srebrenica as a “genocide”.
When Nasir Oric was released from prison by the ICTY, the Head of the OTP’s Liaison Office, Mr. Deyan Mihov, confirmed to American Embassy personnel that “it is becoming increasingly obvious that decisions in the chamber are being politically driven.”[10]
Last month Judge Harhoff was removed from the bench after circulating a letter in which he claimed that Judge Meron was exerting pressure on his fellow judges in their deliberations because of “pressure from ‘the military establishments’ in certain dominant countries”.[11]
It is obvious that politics is the driving factor behind the ICTY’s findings. The cables reveal that the U.S. Government lobbied for Meron’s appointment to the Tribunal. Meron is described in the State Dept. cables as “the Tribunal’s preeminent supporter of US Government efforts.”[12]
The U.S. State Dept. and the ICTY are completely intertwined with one another. When Meron wanted Carla del Ponte fired as ICTY chief prosecutor, he took his case to the U.S. Embassy.
According to the cable, “Meron explained that Del Ponte is ‘primarily a media person who is primarily interested in her own legacy.’ She has ‘absolutely no idea about management’ and is ‘not in control of her staff.’ He described ‘tremendous unrest’ in the OTP, noting that a senior OTP official had met with him to convey a detailed litany of concerns about the poor management of the office and the threat it posed to achieving completion strategy targets. Meron provided a confidential memorandum of that conversation reporting the official’s view that ‘the current Prosecutor lacks the required vision, lacks the needed managerial competence, and lacks the commitment to the completion strategies that will be necessary to bring them about as promised’.”[13]
Everything about the ICTY is politically driven. A cable dating from 2007 shows that France wanted the job of ICTY Chief Prosecutor promised to Serge Brammertz for blatantly political reasons.
According to the cable, “France is backing Serge Brammertz to succeed Carla Del Ponte as ICTY Chief Prosecutor from a belief that Brammertz will otherwise refuse to extend his mandate at the UN International Investigative Commission (UNIIIC), an outcome the French characterize as disastrous. MFA UN/Middle East Action Officer Salina Grenet explained to Poloff on May 10 that Brammertz was conditioning any prolongation of his UNIIIC duties on a guarantee — by June 15 at the latest — of a suitable onward assignment.”[14]
The apparent fact that the ICTY Chief Prosecutor got his job because of political horse-trading is particularly disturbing because the Office of the Prosecutor has the power to suppress evidence of war crimes, which is something that they obviously do.
The judges can’t convict NATO officials for war crimes when the Office of the Prosecutor hasn’t issued an indictment – even though they’re prosecuting Serbs for exactly the same type of offences that they’re not prosecuting NATO for.
The Tribunal boasts that its “proceedings provide victims and witnesses the opportunity to be heard and to speak about their suffering. To date, over 3,500 witnesses have told their stories in court. Through this, they have contributed to creating elements of a historical record.”[15]
One victim that was not allowed to contribute to the historical record by speaking about her suffering was Ms. Angelina Pikulic, a Serbian woman from Pofalici who was held prisoner at the Silos prison camp in Tarcin from May of 1992 until January of 1996.
During her stay in the camp she was subjected to inhumane treatment by her captors, and she witnessed other Serbian prisoners being tortured, raped, and killed by Muslim soldiers and policemen. The prisoners were held in terrible conditions, and she had to live for more than three years with the constant threat of being raped or killed while she was in that camp.[16]
The conditions of her imprisonment were just as bad as anything Muslim prisoners had to endure in Serbian camps like Omarska. The difference is that the Office of the Prosecutor never bothered to indict any Bosnian-Muslim officials for what they did to the Serbian prisoners in the Silos camp.
When Ms. Pikulic testified as a witness in the Karadzic trial, the trial chamber forced her to redact her witness statement and remove all references to her imprisonment in the Silos camp after the Prosecution requested that her testimony be rejected on the grounds that, “Thirteen out of the eighteen paragraphs of Ms. Pikulic’s statement relate exclusively to crimes committed against Serbs.”[17]
According to the ruling, “The Chamber considers that of the twelve remaining paragraphs of the Witness Statement, ten are comprised solely of tu quoque evidence pertaining to crimes allegedly committed against Bosnian Serbs … are irrelevant to the charges in the Indictment and therefore may not be tendered into evidence.”[18]
She protested the Chamber’s ruling saying, “Those paragraphs have to do with my stay in the Silos camp, which in turn would mean that I cannot convey the suffering I had undergone in the Silos camp.”[19]
Judge Morrison explained that “the reality of the position in which we find ourselves is this is not the right forum for that and accordingly the limitations have been put on. This is not out of a lack of sympathy for the witness; it’s to expedite the proceeding.”[20]
While there is certainly truth in the argument that Muslim crimes don’t justify or excuse Serbian crimes, and that the Karadzic trial may not be the best forum for Serbian victims of Muslim atrocities to tell their stories. The reality for Ms. Pikulic and many other Serbian victims is that there is no other forum to go to because the Tribunal isn’t prosecuting anyone for the crimes she had to endure.
Muslim victims from Serb-run camps like Omarska and Keraterm can come to the Tribunal and have their stories recorded for historical research and posterity, but she can’t.
Not only did ICTY Prosecutors fail to prosecute her captors for what they did to her and the other prisoners in the Silos camp, but they went out of their way to have her witness statement redacted so that any mention of the crimes and suffering that she endured wouldn’t be recorded anywhere in the Tribunal’s archives.
It didn’t expedite the proceedings for the Prosecution to file a motion to exclude her evidence, and nor did it expedite the proceedings for the judges to go through the process of writing a decision granting the Prosecution’s request. If anything, that whole procedure delayed the proceedings. The judges are perfectly capable of ignoring whatever evidence they think is irrelevant. The only purpose that going through the exercise of redacting that evidence could have is to suppress the evidence and prevent it from going on the record.
The Tribunal’s high-minded rhetoric about fighting impunity and giving a voice to the victims of atrocities is a complete sham. The ICTY gives impunity to NATO, and the ICTY only gives a voice to the victims that it wants to hear.
The Tribunal’s real goal is to justify U.S. and NATO policies in the former Yugoslavia. The judges and the prosecutors know that their paycheck depends on keeping their American and NATO benefactors happy, and that’s why ICTY personnel maintain such a close relationship with the American Embassy in The Hague.
Endnotes:
[1] ICTY’s 20th Anniversary – Statement by President Judge Theodor Meron <http://www.icty.org/sid/11319>
[2] “Arbour Draws US Ire Over Remarks About NATO Pilots”, Monday, May 24, 1999, UN Wire,
<http://www.unwire.org/unwire/19990524/2768_story.asp>; See also: “We’ll never hand
pilots to Arbour: U.S. official”, National Post (Canada), May 22, 1999
[3] Interview with Richard Holbrooke, “United Nations or Not? The Final Judgement: Searching
for International Justice “, BBC Radio, September 9, 2003
<http://www.bbc.co.uk/radio4/news/un/transcripts/transcript_programme3.shtml>
[4] M2 PRESSWIRE; May 28, 1999; NATO Transcript of press conference given by Mr Jamie Shea and Major General Walter Jertz in Brussels and “Press Conference Conducted by NATO Spokesperson Jamie Shea and Major Gen. W. Jertz,” M2 Presswire, May 17, 1999
[5] Wikileaks Cable 04THEHAGUE1693
[6] Wikileaks Cable 04THEHAGUE985
[7] Wikileaks Cable 03THEHAGUE2835
[8] Wikileaks Cable 08STATE133190
[9] Wikileaks Cable 04THEHAGUE1033
[10] Wikileaks Cable 06BELGRADE1092
[11] http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf
[12] Wikileaks Cable 03THEHAGUE2818
[13] Wikileaks Cable 03THEHAGUE1827
[14] Wikileaks Cable 07PARIS1882
[15] “The Tribunal’s Accomplishments in Justice and Law” < http://www.icty.org/x/file/Outreach/view_from_hague/jit_accomplishments_en.pdf >
[16] Unredacted Witness Statement: <http://peterrobinson.com/Witness%20Lists/Week%20Six_Witness/Angelina%20Pikulic%20Revised%2092%20ter%20notice.pdf>
[17] Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulic; 19 November 2012
[18] Karadzic Trial Chamber, “Decision on the Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulic”, 27 November 2012
[19] Karadzic trial Transcript, 29 November 2012
[20] Ibid.