There are at least three important reasons why Srebrenica must be made the subject of relentless critical deconstruction until we are fully satisfied that we have arrived at the truth.
1. Legal. The integrity of the international legal system will be seriously compromised if the results reached by political instruments such as ICTY are allowed to stand unchallenged. Acquiescence in its shoddy practices will lower standards generally and it will set a dangerous precedent, emitting the message that international legal institutions are a farce and that they may be instrumentalised with impunity by whoever happens at the moment to exert hegemonistic influence in the world. If the institution former President Milošević, in his idiosyncratic but in this case unintentionally perfect English, called “the false tribunal” is allowed the benefit of its pretenses, the future of international jurisprudence will not be brilliant. Other, properly constituted international legal organs, which do operate with due regard for the established principles of international jurisprudence, will be tainted by association.
2. Historical. When corrupt politics and journalism are reinforced by corrupt jurisprudence, the result—for a period of time at least—is a phony historical record. That phony historical record then serves as the backdrop for phony analyses and tedious moralizing about the policy errors that made a horror like Srebrenica possible[1]. There is, of course, not an iota of honesty or sincere self-criticism in that theatrical nonsense[2]. The real purpose of the hypocritical self-flagellation is to create a quasi-moralistic rationale for pre-emptive and proactive strikes anywhere on earth. This phony rationale allows aggressors to claim that these acts, which are in complete disregard of the norms of international law, are in fact justified because they were undertaken out of a deep commitment to the humanitarian imperative that another “Srebrenica” should never be allowed to occur again. The practical result of this mendacious humanitarian concern, in the background of which are said to lie the “lessons of Srebrenica,” are the slaughter of Fallujah, the torture chambers of Guantanamo, the occupation and destruction of Iraq and the murder of an estimated one million of its inhabitants, and the martyrdom of the people of Afghanistan, to mention just a few examples[3]. Those are just some of the uses of Srebrenica (as Diana Johnstone would put it) on the geopolitical stage. More locally, however, it has another use, as an instrument of political blackmail and moral pressure on a small and brave nation whose refusal to be cooperative upset the timetable of present-day hegemons, just as the reckless defiance of their parents 70 years ago seriously interfered with the plans of the would-be hegemon of that epoch. Srebrenica is the principal moral and political instrument now used to control Serbia’s spineless political elite and to beat the Serbian people systematically into submission. The creation and imposition of a phony historical record of the relevant events is sine qua non for the success of that project.
That is the reason why the high priests of the Srebrenica cult keep such a sharp eye out on the slightest stirring of critical thinking, anywhere, about their false construction. They react invariably with the threat that any “any attempt at revision of historical facts” concerning Srebrenica is strictly forbidden[4]. One of the mechanisms they use to shore up their dogma is the fabrication of “facts” to suit their propaganda needs. One of the ways that system works will be illustrated here.
3. Moral. But of all the cynical abuses of Srebrenica, by far the most outrageous is the moral. It has been used to tar an entire nation with the most repugnant crime that can be committed. A mighty machinery of propaganda, politics, and jurisprudence has been activated for the sole purpose of creating a shameless bluff and then validating it through the interacting political and quasi-legal institutions of a ruthless and predatory world order. The presumed beneficiaries of this moral charade, Bosnian Moslems, are in fact nothing of the sort. Just as the residents of the enclave of Srebrenica were abandoned and betrayed in 1995 by their leadership in Sarajevo in a callous endgame transaction, so Bosnian Moslems as a group were manipulated on the global chessboard by their solicitous Western “protectors”, most of them without having a clue about it[5]. The result was incitement to mutual carnage across Bosnia, with particular ferocity in the area of Srebrenica, deeply poisoning relations between neighbors and setting the stage for long term regional instability which, conveniently, can now be managed only through the intervention of foreign arbitrators. Srebrenica is a multipurpose fabrication.
In sum, the pernicious myth manufactured by the creators of Srebrenica has generated the dangerous precedents of phony jurisprudence, phony history, and a phony international “morality.”
Jurists know that a court’s primary task is to determine the facts. Reliably established facts are the foundation of any further legal analysis. Without a credible factual matrix, further conclusions are inherently problematic and disputable. The fact finding process is governed in part by the applicable rules of evidence and also by the customary norms of judicial practice. When evidentiary rules and customary norms prevail the chances are greater that the factual matrix established by the court is reliable. The court’s further conclusions based on such facts are more likely to withstand critical analysis and ultimately to command respect.
In contrast to regular and non-political tribunals in national jurisdictions, the Hague Tribunal (ICTY) does not confine itself to the simple determination of facts, carried out in the conventional and generally accepted way. When the peculiar tasks and needs of that particular Tribunal are taken into account that is quite understandable. If the Tribunal to confined itself to the norms of professional practice, that would pose a genuine danger to the successful completion of its tasks. It would quite possibly be left without even a semblance of an evidentiary basis for the drawing of its preordained conclusions. The Tribunal must therefore resort to a highly irregular approach: often it simply manufactures “facts” to serve its needs. In this manner it plugs holes in its indictments and judgments (and often these holes are numerous and gaping) and it produces an apparent basis for conclusions that were drawn in advance.
We will now consider how this travesty of a legal system operates by focusing on a very significant example. The deafening propaganda about “8,000 executed Bosnian Muslim prisoners” (later redacted into the emotion packed phrase: 8,000 men and boys) has effectively barred some very basic questions from being considered (or even raised) in a calm and deliberative atmosphere. One of the main issues in this regard is the following: when, where, and how, did Serbian forces capture such a large number of men in order to be able to execute them later? Without a mass taking of prisoners, subsequent mass executions are not possible. In order to be able to execute 8,000 people, you must have captured them first.
How does the Hague Tribunal solve the prisoner issue? As a practical matter, that means proving in at least a minimally satisfactory way how many prisoners there should have been under the control of Serbian forces before the executions started. In the Krstić case trial judgment, which is several hundred pages long, that issue, although central, is dealt with rather laconically, en passant, as if it concerned something quite peripheral. The chamber completes its analysis of this issue in just one relatively brief paragraph, 83. If we follow the footnote trail, it turns out that the chamber based its conclusion that there were 6,000 prisoners to be shot on just four significant sources.
The first of these is Exhibit P 523.27. This is supposed to be an intercepted conversation which suggests that already by July 13 Serbian forces had about 6000 Bosnian Moslem prisoners in their custody.
However the problem with Exhibit P 523.27 (the .27 refers to the number of that particular intercept with the batch) is that it is mentioned only in the trial judgment, but not in the trial transcript. Also, Exhibit P 523 is nowhere to be found in the ICTY data base for the Krstić case. Nor is there a reference to this document on the list of July 13th intercepts.
That leaves open the possibility that this particular exhibit may have been introduced in closed session or under seal. If it had been introduced in open session, the court officer would have called it out and an indication of that would be left in the transcript. In any event – and that is all that matters – this document, which allegedly mentions the critical figure of 6000 prisoners is inaccessible and unverifiable. That is as good as non-existent.
The next evidentiary basis for the Krstić chamber’s conclusion about the number of prisoners prior to the time when executions started is the testimony of Colonel Franken, deputy commander of the Dutch battalion in the Srebrenica enclave at the time it was seized in July of 1995.
In his April 4, 2000, testimony[6] Franken declared that the figure of 6,000 captured Bosnian Moslems was revealed to him by a certain Serbian major by the name of Janković in a conversation they had on July 14th. A bit earlier, Franked stated about that officer that he “appeared to be a major player on the Serbian side[7] .” If Major Janković really was such a “major player” as Franken thought he was, he has certainly managed so far to keep a very low profile in the Srebrenica narrative.
Now some important questions need to be raised. Who was, in fact, this Serbian officer Janković and what was the basis for Franken’s impression of his importance? What position did the major occupy in order to be privy to such key information? And assuming he was in such a position, as a professional would he have been such a chatterbox as to divulge information of such delicate nature to a foreign colleague while the operation was still in progress? Finally, the most important question of all: why would the Tribunal be satisfied concerning a matter of such critical importance to the factual basis of the entire case to receive through Franken evidence that was manifestly hearsay? Why didn’t the Tribunal subpoena Janković to testify in person so that the chamber could hear and assess his evidence at first hand? The Tribunal has all the necessary authority to do that (and in a number of cases it has exercised it). It easily could have issued an order to Janković, on pain of being charged with contempt, to come to the Hague to inform the chamber of any knowledge he may have had concerning the number of captured Bosnian Muslims in the immediate aftermath of the Srebrenica operation. Why did it choose not to use that authority?
Instead, on a key issue the chamber needlessly put its faith in a second hand account. In its judgment it went on to treat this hearsay allegation as a verified and credible fact.
The next source is the evidence of the Prosecution military expert William Butler presented in the course of his testimony. Through Butler the Prosecution introduced an intercepted conversation of July 18[8] , where the participants mention that between “4,000 and 5,000 prisoners” had “kicked the bucket.” The apparent purpose of that evidence was to enhance the impression that the Serbian army must have had a large number of prisoners in its custody if by July 18th it had managed to execute that many.
It is important to note that in his expert testimony Butler relies on the English translation of this alleged intercept, and that is why the mortal outcome is referred to using the English colloquial phrase “to kick the bucket.” A little further on Butler admits that he does not speak Serbo-Croatian (or BHS, the Tribunal’s official hybrid language for the former Yugoslavia). Butler said that he “assumes” that “kicked the bucket” means the same thing as “executed” because, based on his military experience, “not even close to 4,000 or 5,000 could have been killed in the column between July 14 and 18. I can only assume,” Butler continues, “that this refers to male Muslims who were taken to the Zvornik brigade area of responsibility, where they were shot[9].”
It is interesting that several years later, under cross-examination in the Popović case, Butler was obliged to modify his position[10]. He admitted at that time that it would be reasonable to suppose that “…between 1,000 and 2,000 Bosnian Moslems might have died in military clashes” the column was involved in. That is a bit closer to the previously “impossible” figures. We also have contemporaneous reports of officials of the UN and other bodies present in the area who generally estimate the likely number of column casualties at around 3,000[11]. That is even closer to the figure of casualties in legitimate combat operations that in the Krstić trial Butler had previously dismissed as “impossible.”
So it would appear that the column’s casualties were not as minor as the chamber in the Krstić case tried to portray them, presumably so that by reducing the number of combat deaths it could inflate the number of alleged execution victims without the total casualty figure seeming completely unrealistic and absurd. But to return for a moment to the English colloquial phrase “to kick the bucket.” Although Butler concedes that he does not speak the original language in which the alleged intercepted conversation that he is analyzing was conducted, he does go on to attribute a very specific significance to it. In the interpretation that, in his capacity as an expert, he offered to the court he claimed quite conclusively that in expressing themselves as they did the participants could have had only one thing on their minds: executed prisoners, not battle casualties. However, there we encounter two problems.
First, in the Tribunal data base there is no Serbian original of this intercepted conversation, either. As a result, persons who do have knowledge of the original language are not in a position to check what was actually said and – in contrast to the linguistically challenged Prosecution “expert” Butler – assess competently the real meaning of this conversation’s key terms. In relation to the central issue, the only text of the conversation that is available for evidentiary purposes exists solely in English translation. In other words, we have what conversation participants allegedly said but in a language that they certainly did not use.
In the second place, if the “expert” Butler – though he does not speak the language of the area which is the subject of his expertise – only had a more nuanced sensibility for his own language he should have noticed that it was from the standpoint of English that, under the circumstances, his interpretation to the chamber, made no sense. In English, “to kick the bucket” indeed means to die, but it is with a strong suggestion of illness, old age, or some other natural cause. In any event, anyone who speaks idiomatic English is aware that this phrase does not imply violent death and that it would not commonly be used by native speakers to refer either to combat death or to execution.
It is therefore essential for someone who does speak the local language, which excludes Butler, to read the original transcript of this conversation and to inform the chamber and the public of its real meaning. But, as we have pointed out, in the Tribunal’s “transparent” environment that is not possible because the text of this conversation in the original language is simply unavailable.
Finally, the fourth source for the 6,000 prisoner figure is an alleged intercepted conversation of July 13, 1995[12]. This item is of some interest because it demonstrates the tendentiousness of an ICTY chamber which stops at nothing, no matter how thin it may be in terms of compelling evidence, if only it is remotely useful to corroborate the court’s preconceived conclusions.
In this alleged intercepted conversation the participants are designated as X and Y. So to distinguish them from the mysterious Major Janković, we do not even know their names. For that reason it is impossible to order them to appear to testify under oath concerning the substance of the conversation that is attributed to them, nor is there any way to assess whether or not they were even in a position to know the things that they are talking about. (The last point is of huge importance because it would have been raised insistently by the defense and considered sympathetically by a professional chamber in every court worthy of the name.) We do not even know whether X and Y ever existed. Nevertheless according to the Prosecution, and that is something that the Krstić chamber readily accepts, two anonymous figures, X and Y, conducted a conversation at 5:30 p.m. on July 13th, 1995, during which Y informed X that at each of three different locations there were “about 1,500 to 2,000” prisoners, or a total of “about 6,000.”
A brief but relevant digression will assist us in understanding better the Tribunal’s game. Why do they need to show that Serbian forces had “about 6,000” Moslem prisoners in their custody around 5:30 p.m. on July 13th? Because that was practically the last moment when mass capture of Muslim prisoners was still possible. The column, let us recall, departed from the village of Šušnjari in the enclave of Srebrenica in the late night of July 11, 1995, and at that time it is reliably estimated to have consisted of 12,000 to 15,000 partly armed men. In the evening of July 13th the bulk of that column had already crossed the Bratunac – Konjević Polje road and was moving along mountain trails toward Muslim-held Tuzla. From that point on numerous combat engagements took place in ambushes set by Serbian forces, but based on the statements of surviving members of the column, beyond that point, except for the capture of individuals and small groups, there were no mass surrenders to the Serbian army. If there was any large scale taking of Muslim prisoners by the Serbs, given the circumstances and the configuration of the terrain, that was most likely to happen between Šušnjari and Konjević Polje, i.e. by the afternoon of July 13. So the Tribunal is crafting its “evidence” accordingly.
But even so, the proffered conversation of two anonymous individuals does not entirely support the ideal interpretation that the Prosecution and the chamber would attribute to it. Each of the three locations where prisoners were allegedly being held is supposed to have contained a range of 1,500 to 2,000 men. If for some reason the chamber was inclined to credit this evidence of two nameless interlocutors, it still had the alternative of selecting the lower estimate for each location, which would have given a total not of six but of 4,500 prisoners. In this way, even if it erred the chamber would have acted responsibly and with caution. However, the court was working very hard to fulfill the 8,000 victim quota. It therefore had to opt for the maximum number of prisoners so that the alleged number of execution victims would seem credible. Accordingly, the chamber selected and combined those figures which were most in tune with its own concept. It is clearly a result driven process.
But the concept is unsustainable not just because it depends on evidence that is inherently flawed but also because the entire narrative of how the event is supposed to have unfolded is fundamentally illogical. It is highly improbable that the mere 1,500 Serbian soldiers who took part in the Srebrenica operation should have easily and quickly managed to take 6000 Bosnian Muslim prisoners from the mass of 12,000 to 15,000 partially armed men who constituted the retreating column[13]. Furthermore, if as the official story claims the Muslims decided to break out of the enclave and to march to Tuzla because they had a well founded fear that upon capture their Serbian enemies would slaughter them, why would they surrender to their potential executioners en masse, and do so only a few kilometers from their point of departure? If they contemplated surrender, would it not have made more sense for them to have done it in Srebrenica on July 11 instead of pointlessly assembling in Šušnjari to attempt a breakout, only to surrender a short distance of a few kilometers down the road?
In the Krstić case, which is accepted as the foundation stone of Tribunal jurisprudence with regard to Srebrenica, and where the legal finding of genocide makes its first appearance, the trial chamber claims in its judgment that based on the careful review of several sources it came to the conclusion that already by July 13 Serbian forces had in their custody about 6,000 Bosnian Muslim prisoners. If correct, that view would have made the crime that is attributed to the Serbian side technically feasible. Therein lies the critical significance of this figure. The six thousand prisoners constitute the human reserve whence the victims of execution are drawn.
Our analysis of this segment of the trial judgment in Krstić does not suggest that no prisoners were taken by the Serbs. But the key question is: how many? The feasibility of the alleged execution of 8,000 prisoners depends on at least an approximate – but fairly accurate – answer to that question[14]. The burden of proof, onus probandi, as always in similar circumstances rests on the party which is trying to demonstrate a thesis. In this case, it is on those who claim that there were approximately as many captured prisoners as there were alleged victims of execution. We just saw the seriousness and professionalism which the Hague Tribunal invested into that issue, and in a case whose paramount conclusion – genocide – is by no means trivial.
This illustration of evidence management and outright fabrication is paradigmatic of the general way the Hague Tribunal works. But if we wish to confine ourselves to nothing more than just the Krstić case, from which this illustration is drawn, that alone ought to be quite illuminating. It illustrates not just the mechanism which the Tribunal employs to plug the holes in its evidence but also its modus operandi. That marks one of the essential differences that distinguish the Hague Tribunal from a proper court.
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Endnotes:
[1] See Newsday, “War criminals in the US,” March 12, 2006: “Last year, on the 10th anniversary of the massacre, British foreign secretary Jack Straw acknowledged the failure and apologized. ‘For it is to the shame of the international community that this evil took place under our noses and we did nothing like enough,’ he said. ‘I bitterly regret this and I am deeply sorry for it.’” Straw atoned for his inaction at Srebrenica in 1995 four years later when he became one of the most aggressive supporters of NATO’s illegal aggression against the Federal Republic of Yugoslavia.
[2] The penitent “statesmen” and public figures engaging in these soul-wrenching exercises of moral theater represent, of course, countries which in recent history have been responsible for the destruction of tribes, nations, and civilizations on a scale far exceeding even the most wildly exaggerated human toll of Srebrenica.
[3] The illegal three-month bombing campaign against the Federal Republic of Yugoslavia in 1999, on the cynical pretext that its purpose was to prevent the imminent genocide of Kosovo Albanians, is another example of criminal conduct which cost many lives and caused much destruction and which also can be directly traced to the “Srebrenica rationale.”
[4] No sooner did the government of the Republic of Srpska, in April of 2010, announce a its intention to conduct c comprehensive review of the actual fate of the large category of Srebrenica “missing” who are consistently conflated with the victims of execution in order to get closer to the magic figure of 8,000, than the High Representative in Bosnia, Valentin Incko, reacted with a stern warning that the “repulsive attempt to falsify historical and legal facts in order to deny that what occurred in Srebrenica was genocide” will not be tolerated “. (see,http://www.balkaninsight.com/en/main/news/27480/ ). This was, in fact, a classical knee-jerk reaction. Incko was provoked to sound off on the subject by the mere possibility that the government might undertake a credible investigation which potentially could undermine the “sacralized” version of Srebrenica events. It mattered little that at that point no investigation had even started and no conclusions had been reached. Where Srebrenica is involved the principles of scholarly methodology and freedom of critical inquiry do not apply; militant medieval dogmatism does.
[5] The fact that they were led into war by their leader Alija Izetbegović on the promise that they would emerge as the dominant element in independent Bosnia and Herzegovina, but in the end they had to settle for under a quarter of the territory and even that in a dysfunctional union with the Croats, says enough about how they have fared in the conflict. And if they have any sense of Islamic solidarity, they should be outraged by the clear cause-and-effect relationship between the phony Srebrenica “genocide” scenario, and the very real slaughter of hundreds of thousands of Muslims in other countries which would have been difficult to execute without the humanitarian intervention pretext to which the supposed “lessons of Srebrenica” have contributed significantly.
[6] Transcript, p. 2050.
[7] Transcript, p. 2032.
[8] Transcript, p.. 5205.
[9] Ibid.
[10] Popović et al, Trial transcript, 23 January 2008, p. 20251, lines 6-8.
[11] See, United Nations, Sector NE Tuzla, Civil Affairs, 17 July, 1995, p. 2, EDS ICTY data base, R0433426; also see EDS ICTY data base, R003-8723; and EDS ICTY data base, R043-3424
[12] EDS ICTY data base, 01043225.
[13] Major Franken, deputy commander of the Dutch battalion in Srebrenica in July of 1995, estimates that about 50% of column members were “probably armed”. Prosecutor v. Krstić, Transcript, p. 2029.
[14] The difference of about 2,000 between the alleged number of prisoners (6,000) and the official figure of 8,000 execution victims should not cause undue confusion. The Prosecution claims that, in addition to organized executions, there occurred also a number of so-called “opportunistic killings” which ought to cover the discrepancy.